This Act defines when a New Brunswick court may hear a case (territorial competence), what matters it cannot principally decide (subject matter limits), and how the Court of King’s Bench may transfer proceedings to or accept transfers from courts outside New Brunswick. It supplies granular tests—ordinary residence rules for corporations, partnerships and associations; a long list of circumstances that create a presumption of a ‘‘real and substantial connection’’ with New Brunswick; and a statutory forum‑non‑conveniens framework for declining jurisdiction.
The Act also creates a bilateral transfer regime: the Court of King’s Bench may request an extra‑provincial court to accept a transfer, may accept transfers from such courts, and must provide reasons and may attach conditions to transfers. The legislation protects plaintiffs against being time‑barred where an extra‑provincial court previously had competence and resolves how completed and pending procedures carry over after a transfer—details that will change litigation tactics for counsel and operational demands on courts and cross‑border defendants.
At a Glance
What It Does
The Act sets out exclusive rules that determine when New Brunswick courts have territorial competence and when they lack subject matter competence, lists factual presumptions that connect a dispute to New Brunswick, and authorizes the Court of King’s Bench to transfer part or all of a proceeding to an extra‑provincial court or to accept such transfers. It requires reasons for transfer/refusal and allows the Court to impose conditions, return cases, or vary transfer terms.
Who It Affects
Litigants and counsel in cross‑border civil matters, corporations and partnerships with New Brunswick connections, estate and trust parties, the Court of King’s Bench and provincial enforcement bodies, and extra‑provincial courts that may receive or send transferred proceedings.
Why It Matters
By codifying forum rules and a transfer process, the Act reduces some uncertainty about where claims may proceed, changes how lawyers assess choice‑of‑forum clauses and limitation risk, and creates a statutory channel for interplay between New Brunswick and other jurisdictions—altering practical litigation choice and enforcement planning.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
The Act begins by defining its terms and the two jurisdictional concepts it targets: territorial competence (based on a connection between New Brunswick and a party or the facts) and subject matter competence (based on the type of legal question). That framing tells the reader the statute is about where a case should be heard, not whether a claim is legally valid.
The definitions also treat ‘‘state’’ broadly to include other provinces and foreign countries, and allow an extra‑provincial court to be any court outside New Brunswick.
On territorial competence, the Act creates an exclusive statutory test. A New Brunswick court can hear a proceeding against a person only if one of a closed list of connections exists—examples include ordinary residence in New Brunswick, submission to jurisdiction, an agreement selecting the New Brunswick forum, mandatory party status, service/arrest of a vessel in New Brunswick, or a ‘‘real and substantial connection’’ between the facts and New Brunswick.
The statute then supplies detailed, objective indicia that give rise to a presumption of such a connection: property in New Brunswick, administration of New Brunswick estates, contractual performance in the province (including consumer contracts solicited in New Brunswick), torts committed in New Brunswick, business carried on in New Brunswick, Crown claims for taxes, and several other categories.The Act gives the Court of King’s Bench an express forum‑non‑conveniens power: after weighing party interests and the interests of justice, the court may decline to exercise territorial competence if an extra‑provincial court is clearly more appropriate. The list of factors to be considered mirrors common practical concerns—convenience, applicable law, risk of multiple proceedings, enforceability, and the functioning of the Canadian legal system—while hardening enforcement of express exclusive‑forum agreements unless ‘‘strong cause’’ to depart is shown.
There is a specific consumer and employee protection: if a clause purports to make a forum exclusive outside New Brunswick, a consumer or employee can treat the clause as non‑exclusive and choose New Brunswick instead.Part 3 limits subject matter competence for questions that are principally about title to immovable property located outside New Brunswick, while preserving jurisdiction for torts affecting land abroad or contractual/equitable obligations that can be enforced without local court assistance. That choice shifts many property title disputes to the courts of the place where the land sits, but keeps New Brunswick open for linked equitable or contractual relief that doesn’t require foreign court cooperation.The transfer regime is procedural but consequential.
The Court of King’s Bench may request an extra‑provincial court accept a transfer (or accept a transfer requested by an extra‑provincial court), may transfer parts of proceedings, and must assess the receiving court’s competence under that court’s law. Transfer orders must be reasoned and may set conditions, terms for conduct, and return triggers.
When transfers take effect, records move, pending procedures are carried forward under the receiving court’s rules (with a ten‑day clocking rule when moving to New Brunswick), and the statute preserves appeal and limitation protections in narrowly prescribed circumstances. Those mechanics will determine how and when parties seek transfers and how counsel manage ongoing steps in a case.
The Five Things You Need to Know
Section 11 creates a statutory presumption of a ‘‘real and substantial connection’’ to New Brunswick for specific categories, including proprietary rights in property located in the province, torts committed in New Brunswick, contracts substantially performed in New Brunswick, administration of estates with New Brunswick connections, and Crown tax claims.
Sections 8–10 set objective tests for ‘‘ordinary residence’’: a corporation is ordinarily resident only if it has a registered office or required registration, a registered process address or agent, a place of business, or central management exercised in New Brunswick; partnerships and unincorporated associations have parallel, tailored tests.
Section 12 codifies forum‑non‑conveniens: the court may decline jurisdiction after weighing convenience, applicable law, risk of duplicate proceedings, enforcement, and the fair functioning of the Canadian legal system; exclusive forum clauses are enforceable unless strong cause is shown, except that consumers and employees may opt out of exclusivity.
Sections 17–24 create a bi‑directional transfer mechanism: the Court of King’s Bench can request or accept transfers (including partial transfers), must provide reasons for transfer or refusal, may attach conditions and return provisions, and must send relevant portions of the record to the receiving court.
Section 27 protects plaintiffs from losing claims on limitation grounds after transfer: the Court must not hold a claim time‑barred under provincial limitation law if the extra‑provincial court previously had both territorial and subject matter competence and the foreign limitation would preserve the claim.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Key terms and the dual jurisdictional framework
Part 1 fixes the vocabulary used throughout the Act—especially the distinction between territorial competence and subject matter competence—and defines ‘‘extra‑provincial court’’ broadly to include other provinces and foreign states. For practitioners, those labels signal that the statute governs two separate gatekeeping questions: whether New Brunswick is a proper place to sue based on territorial connections, and whether a New Brunswick court can adjudicate the substantive type of dispute at issue.
When a New Brunswick court can claim territorial competence
Sections 3–7 provide the exclusive list of circumstances that allow a New Brunswick court to exercise territorial competence: plaintiff submission, forum agreement, ordinary residence in New Brunswick, mandatory party linkage, arrest or service of vessels, and a catch‑all ‘‘real and substantial connection’’ test. They also preserve a residual judicial discretion to hear a case that otherwise lacks statutory connection only if a plaintiff cannot reasonably be expected to litigate elsewhere. That residual clause is narrow and intended as a safety valve rather than a general override.
Objective residence tests plus a presumption list and the forum‑decline framework
Sections 8–11 give detailed, entity‑specific criteria for ordinary residence (corporations, partnerships, associations), reducing factual dispute over residency. Section 11 then lists circumstances that automatically create a presumption of a New Brunswick connection (property in the province, torts here, contracts performed here, estate administration ties, etc.). Section 12 instructs courts on declining jurisdiction: a judge must weigh enumerated factors and treat exclusive forum agreements as binding unless strong cause to refuse enforcement is shown, while carving out a consumer/employee exception that converts exclusivity into permissive venue at the option of the weaker party.
Limits on deciding title to land outside New Brunswick
Section 14 removes New Brunswick subject matter competence for proceedings primarily about title or possession of immovable property located outside the province, but it preserves jurisdiction for torts affecting foreign land and for contractual or equitable obligations that can be enforced without assistance from the foreign jurisdiction. Section 15 confirms that if another statute addresses subject matter competence, that other statute prevails, spotlighting potential inter‑statutory priorities that courts must reconcile.
Power to request or accept transfers and when transfers take effect
Sections 17–18 authorize the Court of King’s Bench to transfer (or accept) full or partial proceedings and to do so even where it currently lacks territorial or subject matter competence, provided the extra‑provincial court is competent. Section 19 requires reasoned transfer orders and allows conditions, return triggers and records to be sent to the receiving court. Section 21 makes a transfer effective under New Brunswick law only when the receiving court files an acceptance order, tying the domestic legal effect to the foreign court’s formal acceptance.
How proceedings and procedures are carried forward, returned, and appealed
These sections govern what happens after a transfer: the Court must send relevant records; pending procedures generally continue in the receiving court but the Court of King’s Bench may act if it is impracticable to apply abroad; returns occur on stipulated terms or if competence requirements later fail; and certain orders of an extra‑provincial court may be appealed in New Brunswick with leave. The statute also allows the Court of King’s Bench to depart from transfer terms where justice requires it, creating a safety valve for unforeseen unfairness.
Preservation of claims where foreign law would save them
Section 27 instructs the Court to avoid applying a New Brunswick limitation bar in certain transferred cases: if at transfer the extra‑provincial court had both territorial and subject matter competence and under that court’s law the claim would not be barred, the Court of King’s Bench cannot dismiss the claim as time‑barred under provincial limitation law. The provision also preserves the original commencement dates of specific procedures begun abroad for continuity of time limits in New Brunswick.
This bill is one of many.
Codify tracks hundreds of bills on this topic across all five countries.
Explore this topic in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Plaintiffs with New Brunswick connections — easier to establish venue under the statutory presumption categories (property, torts in NB, contracts performed in NB) and the consumer/employee option means some plaintiffs can insist on a New Brunswick forum despite an exclusive foreign forum clause.
- Estate and trust beneficiaries with New Brunswick ties — clearer statutory grounds for New Brunswick courts to supervise administration or trust matters when assets or administration are linked to the province.
- Crown and local authorities in New Brunswick — the Act expressly recognizes Crown recovery claims and tax actions as creating jurisdictional links, facilitating provincial enforcement actions.
- Litigators and courts seeking clarity — objective residency tests and explicit transfer mechanics reduce contested preliminary skirmishes over venue and create a predictable process for cross‑border case management.
Who Bears the Cost
- Out‑of‑province defendants and foreign litigants — greater exposure to New Brunswick proceedings where statutory presumptions apply or where plaintiffs opt into New Brunswick under the consumer/employee safety valve.
- Court of King’s Bench (administration) — added procedural work: issuing reasoned transfer or refusal orders, managing records transmission, monitoring conditions and returns, and applying foreign competence rules when evaluating transfers.
- Businesses with cross‑border contracts — higher litigation planning costs because exclusive forum clauses may be ineffective against consumer and employee claimants and because transfers can move parts of multi‑jurisdictional litigation.
- Extra‑provincial courts and their administrations — potential receipt of transferred cases with differing procedural rules, and the duty to assess competence under their own law creates additional docket and coordination burdens.
Key Issues
The Core Tension
The central tension is between access to a convenient local forum for claimants with meaningful connections to New Brunswick and the need to respect territorial limits and comity with other jurisdictions; the Act expands New Brunswick’s procedural tools to keep cases here when appropriate, but doing so risks forum shopping, increased administrative burden, and interjurisdictional friction where other statutes or foreign courts assert competing authority.
The Act reduces some uncertainty but imports new complexity. ‘‘Real and substantial connection’’ is fleshed out by a non‑exhaustive list, but disputes over whether a particular factual matrix fits a presumption will likely spawn early litigation. Courts will still need to weigh qualitative factors under the forum‑non‑conveniens framework, and the ‘‘strong cause’’ standard for upsetting exclusive forum agreements is not further defined—creating predictability for some clauses but uncertainty for borderline cases.
Transfer mechanics create practical frictions. The Court must apply the law of the receiving state to verify competence, which requires evidence and expert proof about foreign procedural and substantive jurisdictional rules.
Sending records, aligning differing timelines, and applying foreign rules to pending procedures (including the ten‑day rule when moving into New Brunswick) pose logistical and fairness questions, particularly in fast‑moving disputes. The limitation‑period protection avoids unfair time bars after an accepted transfer, but it may incentivize plaintiffs to start abroad to preserve claims and later seek transfer if strategic advantage is discovered.
Finally, the supremacy clauses (conflicts with other provincial or federal statutes) mean courts must grapple with overlapping legislative schemes when other Acts already allocate jurisdiction differently.
There's more to this law than the bill.
Codify Laws traces every connection across the legislative lifecycle.