Publication

Litigation Strategy Repriced: The Cost of Ignoring Amendments to New Brunswick’s Rule 59

Published:

June 15, 2026

Author(s):

• Nicolette Belliveau
• Skye Kelly

Share

Print

Changes to the New Brunswick Rules of Court, in force effective June 9, 2026, modify how courts awards costs – and litigants could pay a high price for failing to take note of them. Understanding how these changes will affect your litigation strategy, your legal budget, and your potential cost exposure is essential. 

Rule 59 of the New Brunswick Rules of Court governs how courts award litigation costs, and it has been subject to significant amendments. These amendments represent a deliberate shift in policy. The new regime is designed to tie cost recovery more closely to proportionality and to discourage over-litigation of modest disputes.  

For frequent litigants such as insurers, the changes will necessitate a new approach to litigation.  Even a complete victory in the Court of King’s Bench may yield little cost recovery if the claim is low-value.  

UNDERSTANDING THE AMENDMENTS   

The five key features of the upcoming amendments are listed below: 

1. Small Claims Will Carry Direct Consequences 

The most important change links Rule 59 to Small Claims Court in a way that the current rule does not. 

Under the prior regime, Rule 59 makes no reference to Small Claims Court. A party could pursue a modest dispute in the Court of King’s Bench and still recover costs as set out in the tariffs of fees and disbursements in Rule 59. Judicial discretion provided some restraint, but there was no automatic penalty for choosing the superior court. 

Under the amended rule, courts will be required to consider whether a proceeding could have commenced in Small Claims Court. If so, the rule will impose strict limits on recovery of costs. 

Where a matter should have proceeded in Small Claims Court: 

• After a trial or appeal, solicitor’s fees will be capped at $500.00; 

• After a motion or application, no solicitor’s fees will be recoverable; and 

• On a default judgment, solicitor’s fees will be capped at $250.00. 

These limits will apply regardless of success on the merits. A party may win outright and still recover only nominal costs. 

The amendments will make early forum assessment essential. Defending a low-value claim in the Court of King’s Bench may no longer make economic sense if the expected cost recovery is minimal or unavailable.  

2. New Tariff to Govern Motions and Applications 

The amendments to Rule 59 repeal the current rule governing contested motions and replace it with a dedicated tariff for motions and applications. 

Previously, motion costs were highly discretionary and often absorbed into final costs at the end of the matter. Under the new amendments, the court must fix motion costs when making an order, using the dedicated tariff with set ranges that can be increased for motions that are complex, time-consuming, unreasonable, or determinative of the proceeding. 

This new structure will increase both predictability and risk. Parties that pursue excessive or tactical motion practice will face immediate and potentially significant cost awards.  

3. Simplifying Trial and Appeal Costs 

The amendments modernize Tariff A of Rule 59, which governs costs following a trial or appeal. 

The prior tariff relies on multiple tables and scales tied to small monetary increments. The new tariff will replace that structure with broader brackets and a simplified scaling system. The goal is to align recoverable costs with litigation realities and to make calculations more straightforward. 

By way of example, for a claim valued at $100,000.00, a successful party under the prior rule might recover approximately $7,500.00 to $9,000.00 in costs, depending on the scale applied. Under the amended rule, the successful party would recover between $28,800.00 and $38,700.00 in costs, depending on the scale applied.  

This will not expand recovery in low-value cases; the Small Claims caps will override Tariff A where applicable. In higher-value matters, however, the new structure should make cost forecasting easier and reduce disputes at the assessment stage. 

4. Settlement Costs Will Move to a Formula 

The amended rule applies a simplified formula for calculating costs when parties settle or discontinue a proceeding under the new amendments: recoverable solicitor’s fees will equal 33% of the basic trial tariff (Tariff A). 

This change should reduce assessment disputes and make settlement economics easier to model. For litigants evaluating early resolution, the new formula will support more reliable cost projections. 

5. Disbursements and Assessment Powers Will Be Updated 

The amended regime will update the disbursement tariff to reflect real-world costs. Recoverable amounts will tie to minimum wage and Treasury Board mileage rates rather than outdated fixed sums. The amendments will also clarify the discretion of assessing officers to allow or refuse costs for a proceeding or a particular step. 

Together, these changes reinforce the emphasis on proportionality and discourage unnecessary procedural steps. 

PRACTICAL IMPACT   

The amendments reduce the upside of cost recovery in modest claims but increase predictability across the board. They favour early resolution, proportionate litigation, and careful forum selection. They also attach real financial consequences to unnecessary motion practice. 

NEXT STEPS  

In light of the new regime, consider adjusting your internal litigation practices. In particular: 

• Assess early whether a claim belongs in Small Claims Court; 

• Approach motions with greater cost discipline; 

• Incorporate the new settlement formula into reserve and negotiation models; and 

• Update cost forecasting to reflect capped recoveries in low-value files. 

For questions relating to the changes to Rule 59 and how the amendments may affect you, contact one of our experienced lawyers at McInnes Cooper.  

Share

Print