New Brunswick has a population of about 770,386 ranking it the third smallest province in Canada. It covers 28,355 square miles, the approximate equivalent of New Jersey, New Hampshire and Vermont combined. New Brunswick is divided by the St. John River into north and south portions. The river flows directly through Fredericton, New Brunswick's capital and third largest city, which is located in the heart of the province. Its most populated city, Moncton, is located on the eastern side of New Brunswick. New Brunswick is Canada's only officially bilingual province, and all matters may be heard by the courts in French, English or both. Interpreters are also available to allow New Brunswick residents access to justice in either of the official languages.

The Initiation of Legal Actions and Issuance of Pleadings

An action is typically commenced by a plaintiff filing a Notice of Action with Statement of Claim Attached, which is filed with the Court of Queen's Bench of New Brunswick by paying a fee and registering the claim with the Court. There are three divisions of Civil Court in New Brunswick; i) Trial division, which hears cases involving unlimited damage claims; ii) Simplified Procedure actions, (otherwise known as Rules of Court - Rule 79 actions), which involve consideration of claims up to $75,000 on an expedited timeline basis; and iii) Small Claims Court, which will consider claims up to $20,000.00.

The pleadings process in New Brunswick is almost identical to the process in Ontario. Once a Statement of Claim is issued, the plaintiff has 6 months to serve it on the defendant(s). A defendant that resides in New Brunswick must then serve and file its Statement of Defence within 20 days of being served with the Statement of Claim. A defendant can also file a Notice of Intent to Defend, which allows them an additional 10 days to file their Statement of Defence.

A defendant which resides elsewhere in Canada or the United States has 40 day to file and serve a Statement of Defence. A defendant that resides anywhere else has 60 days to file and serve a Statement of Defence. Thereafter, the plaintiff may then serve a Reply on the defendant within 10 days, which addresses any additional issues raised in the Statement of Defence. These documents collectively are called the 'pleadings'.

In New Brunswick's Civil Courts, jury trials are reserved only for actions involving libel, slander, breach of promise of marriage, malicious arrest, malicious prosecution or false imprisonment. In these instances, a party may serve on the parties and file with the Clerk of the Court a Jury Notice thereby requiring trial by jury. In effect, the vast majority of all civil trials in New Brunswick are heard by a single trial judge.

Limitation Period

With very few exceptions, the general limitation period for commencing an action in New Brunswick is the earlier of:

  1. two years from the day on which the claim is discovered, and
  2. fifteen years from the day on which the act or omission on which the claim is based occurred

During the COVID-19 pandemic, the Province of New Brunswick issued a Mandatory Order which temporarily paused limitation periods for starting an action or taking any further step in a proceeding, retroactive to March 19, 2020. With the exception of Mechanic's Lien proceedings and some family matters, all limitation periods resumed on September 19, 2020.

Discovery/Examination of Documents and Parties

The Civil procedure Rules of Court in New Brunswick promote the early resolution of claims by mandating pre-Trial discovery of firstly, documentary disclosure and secondly, discovery of parties.

Documentary disclosure occurs via the mandatory production by each party of an Affidavit of Documents, (or 'AOD'), which lists all relevant documents to be disclosed, as well as a schedule of relevant documents that a party refuses to produce on the basis of privilege or other legal basis. A party may serve a Notice Requiring Affidavit of Documents on any another party to the proceeding, which then obliges the answering party to file and serve an AOD to the requesting party within 10 days. The Rule is slightly different for Simplified Procedure proceedings where, following the close of pleadings, the parties to an action must serve an AOD within 30 days on all other parties.

All AODs must reflect all of the documents which are relevant to the issues in the action, and the Affidavit must include a signed certification by the lawyer for the party confirming that the lawyer is not aware of any document not disclosed in the AOD, which should have been disclosed. It is worthy to note that the disclosure of documents does not imply that such documents will automatically be admissible in Court. A party receiving an AOD is entitled to receive only copies of the non-privileged documents referred to therein.

Once the documents are exchanged, any party is entitled to an Examination for Discovery of an opposite party, and the examination is conducted under oath. This is similar to the deposition or discovery process elsewhere in Canada and the USA; however, only the parties to an action are examined. There is no automatic right to examine (depose), experts or non-party witnesses, without an order of the Court. However, a party is entitled to examine an opposing party and obtain answers/details concerning the findings, opinions and conclusions of any expert consulted by the party being examined.

In the discovery process, each party is usually examined/questioned verbally by the opposite party's lawyer for the purpose of "discovering" all of the facts and evidence the adverse party (ies), has in its possession and which are not otherwise contained in the documents. The parties may also question on the documents themselves. There is an option to conduct a discovery by written questions and answers, but this avenue of discovery is used sparingly in practice. Additionally, if a party may be examined by more than one (adverse) party, the Rules of Court require that there be only one examination and the adverse parties may question the deponent one after the other.

Other Pre-Trial Procedures to Prepare a Case for Trial

Following the completion of Examinations for Discovery of the parties and documents, and the satisfaction of any resulting discovery undertakings, the parties to an action will then usually contemplate the need for calling expert witnesses at trial.

Any party who is of the view that all pre-trial procedures have been completed and that the case is ready to proceed to trial may file with the clerk and serve on all opposing parties a 'Notice of Trial', which then mandates the Clerk of the Court to assign a proposed trial commencement date. Once the Notice of Trial is received by the court, the proposed date will be considered by a presiding Judge at the next monthly motions day, and in the absence of any objections, the proposed trial dates will be confirmed and added to the official court docket.

Further, if the parties intend to call any expert witnesses at trial, they need to serve on every other party a copy of the expert's signed report and the report must include, or be accompanied by a statement that contains, the expert's name, address, qualifications and the substance of his proposed testimony. In practice this is referred to as a "Notice of Expert Witness". The Notice of Expert Witness and expert report must be served as soon as practicable and no later than the motions day at which the trial date is fixed.

Pre-Trial Court Mandated Settlement Conferences

Again, in order to promote the possibility of settlement, the New Brunswick Rules of Court permit the Court, at the request of a party or on its own motion, to direct the solicitors for the parties, any party and any other person, to appear before a judge for a settlement conference. A Settlement Conference Judge will then conduct a Settlement Conference (akin to Pre-trial Mediation by a Judge), for the purpose of exploring the potential and possibility of settlement prior to trial. While Settlement Conferences are presided by actual judges of the court, the Settlement Conference Judge is precluded from subsequently hearing the trial of the action in question.

(Note: Although there is no mandated requirement in the New Brunswick Rules of Court obligating the parties to engage in, or participate prior to trial in Alternative Dispute Resolution procedures including private mediation, voluntary mediations of claims by the parties before a private mediator do often occur and are essentially the norm in New Brunswick.)

The time and place for conducting a Settlement Conference will be set by the Clerk of the Court and the parties and their respective lawyers will then prepare and file briefs with the Court. The parties with their lawyers will subsequently appear at the appointed place and time before the Appointed Settlement Conference Judge.

A Settlement conference is typically scheduled 1 to 2 months prior to the actual trial date. The Settlement Conference, and associated procedures, occur under the direction of the Settlement Conference Judge, and the possibilities of settlement are discussed, along with the strengths and weaknesses of each party's case. All records disclosed and discussions occurring during a Settlement Conference are privileged and confidential and non-admissible at trial.

In addition to Settlement Conferences, the Rules of Court also provide for the possibility of a Pre-Trial Conference, where a judge, (usually the appointed trial judge), is put to the task of considering items, issues and procedures, which may facilitate the hearing of the trial in the most expeditious and least expensive manner, such as the consideration of scheduling of key witnesses, and pre-trial agreements on the admissibility of documents and exhibits. At the conclusion of a Pre-Trial Conference, the parties may complete a memorandum outlining the results of their agreements achieved at the conference, or the court may, of its own initiative, make an order or give directions to the parties on all relevant procedural issues. The memorandum and order are thereafter binding on the parties, in connection with the subsequent conduct of the trial. It should be noted that, unlike the Rules in other Canadian jurisdictions, the New Brunswick Rules of Court do not contain any provision for the possibility in civil proceedings of obtaining pre-trial rulings on the admissibility of evidence. All issues related to the admissibility of evidence are left to the discretion of the trial judge and such discretion may not be usurped.

Trials and Subsequent Appeal Procedures

As stated previously, civil trials in New Brunswick are almost always heard by a single judge of the Court of Queen's Bench. If the action falls within the few enumerated exceptions, which justify the participation of a jury, the jury panel will consist of seven members of the public, summoned by the Sheriff following direction of the judge who confirmed the trial date. Following trial, if a party chooses to appeal the trial decision, it may issue and file with the New Brunswick Court of Appeal, usually within 30 days of the lower court decision, a 'Notice of Appeal'. Appeals are then heard, usually by a panel of three judges of the New Brunswick Court of Appeal, situated in the Provincial Capital City of Fredericton.

Originally published by RMC Guide to Litigation in Canada (2020).

Originally published December 17, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.