Effective October 1, 2014, the New BrunswickRules of Court will change – some
Rules for the first time since they came into effect in
1982. All litigants will experience increased out-of-pocket
disbursements during trial preparation, and the discretion given to
the assessing officer to increase some amounts will allow more of
the actual costs incurred to be shifted from the successful to the
Retroactive Effect. The amendments don't
necessarily apply only to disbursements made on or after October 1;
the assessing officer is required to apply the Rules in
effect as of the date of the assessment, so they could apply to
disbursements actually made before October 1.
No Cap on Recoverable Disbursements for Expert
Witness. The most significant change is the deletion from
Tariff D, Item 2, of the maximum amount
recoverable from the opposite party for an expert witness's
attendance at trial. Currently, this amount is capped at $250 per
day; this cap will be deleted, leaving the amount to be what was
reasonable and necessary in the circumstances. This opens the door
to full indemnity for the costs of an expert witness at trial, and
allows the successful party to shift most – if not all
– of its actual costs to the unsuccessful party.
Higher Witness Fees. Currently, a party may pay
the witness actual meal and accommodation costs and loss of wages
where the witness is not entitled to paid leave to testify –
but the amount of disbursements recoverable from the opposite party
were effectively capped. Under Tariff D, Item 1, the fees payable to witnesses
not required to attend under Rule55.05 will increase and the assessing officer
will now have the discretion to adjust them if satisfied it is
reasonable to do so, effectively making the new rates minimum
the daily witness fee increases from $35.00 to $50.00 per day
of necessary attendance
the mileage rate increases from 20 cents to 40 cents per
kilometre between the specified points depending on where the
witness resides relative to the trial location
the overnight allowance for accommodation and meals is raised
from $35.00 per night to $75.00 per night where applicable
Evidence of Discount Rate for Future Pecuniary
Damages. Under Rule54.10(2), the current 2.5% per year discount
rate to be used to calculate future pecuniary damages will become a
default rate, and parties will be permitted to bring evidence to
establish a different rate.
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.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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