Losing your driver’s licence can affect much more than your ability to get from one place to another.

Losing your driver's licence can put your work, income and family responsibilities under pressure. In many New Brunswick communities, finding another way to travel is difficult, especially when driving is part of your job or you care for someone who depends on you.

Some drivers may be able to ask the New Brunswick Court of King's Bench to cancel or shorten a licence suspension under section 313 of the Motor Vehicle Act. 

Eligibility depends on the reason for the suspension, your driving history and the legal requirements that apply to your case.

Before starting an application, the first question is whether section 313 is available for your particular suspension. Hardship alone does not establish eligibility.

What section 313 can do

Section 313 allows eligible applicants to ask a judge to rescind a revocation and suspension, vary the suspension's duration and direct reinstatement of their licence and driving privileges. The Court's authority is limited to the categories set out in subsection 313(2).

Section 314 reinforces those limits. A difficult personal situation cannot, by itself, give the Court authority to grant relief outside the legislation. See sections 313 and 314 of the Motor Vehicle Act.

Who may qualify

The categories in subsection 313(2) include:

• Cases listed in subsection 311(2), where reinstatement is essential to avoid exceptional hardship other than loss of livelihood.

• Certain second point-based suspensions within the relevant three-year period.

• Certain first suspensions within the relevant three-year period resulting from ten points assessed for a Criminal Code conviction, subject to subsection 313(3).

• Suspensions resulting from a first conviction for driving while suspended within the three years preceding the suspension.

• Suspensions resulting from a first conviction under paragraph 99(1)(a) within that three-year period. That provision concerns displaying or possessing certain invalid or fraudulently altered licences.

• Certain suspensions resulting from points assessed for a second conviction while holding a probationary licence issued under section 301.

• Certain second suspensions within three years for driving contrary to a restriction imposed by the Registrar.

  
  

These are summaries of technical categories. The exact suspension provision, licence type and relevant dates must be checked against the legislation. Calling a suspension your "first" or "second" does not resolve all the eligibility requirements.

A further restriction applies to the Criminal Code category in paragraph 313(2)(c): subsection 313(3) requires the relevant driving-prohibition period to have expired before an application can be made or considered. That includes the Canadian Criminal Code prohibitions and qualifying United States prohibitions described in that subsection. A section 313 application does not cancel a criminal conviction or its driving-prohibition order. See subsections 313(2) and 313(3).

Choosing the right procedure

Several procedures deal with licence suspensions, but they serve different purposes:

• Section 311: an application to the Registrar in specified cases where reinstatement is essential to avoid loss of livelihood.

• Section 312: a court appeal from a qualifying Registrar decision under section 311. The Notice of Application must be filed within 30 days after the Registrar's decision.

• Section 313: an application to the Court of King's Bench in the categories described above.

  
  

An immediate roadside suspension also has a separate review process under section 310.07, with steps that must be completed within 15 days after service of the suspension order. A hardship application does not replace that review process or preserve its deadline. See sections 310.07 and 311 to 313, and our information on immediate roadside suspensions in New Brunswick.

Showing loss of livelihood or exceptional hardship

For eligible applications other than those under paragraph 313(2)(a), the judge must be satisfied that the continuing suspension would cause loss of livelihood or another form of exceptional hardship. For paragraph 313(2)(a) applications, the required exceptional hardship must be something other than loss of livelihood. This distinction comes from subsection 313(4).

If your employment is at risk, explain what you do and why driving is necessary. Useful evidence may address:

• Your job duties and the driving they require.

• Whether your employer can offer other duties or arrange another driver.

• Whether public transportation, taxis or help from others are realistic alternatives.

• The work or income you will lose if the suspension continues.

• An employer's evidence is more useful when it explains the consequences in specific terms. A general statement that you need a licence for work leaves important questions unanswered.

• If you rely on medical, caregiving or other personal circumstances, explain the practical consequences and provide supporting documents where appropriate. Describe the journeys required, their frequency and why alternatives are unavailable or insufficient. Living in a rural area or having family responsibilities does not automatically establish exceptional hardship.

Addressing the public interest

The judge must also be satisfied that reinstatement would not be contrary to the public interest. Serious hardship does not remove this separate requirement under subsection 313(4).

Your application should address the circumstances of the offence, your complete driving history and your conduct since the suspension. Depending on the case, relevant material may include evidence of compliance with orders, completed education or treatment, and steps taken to prevent further offences.

Any unfavourable entries in your record need an accurate explanation. The evidence should help the Court assess both your circumstances and the public-safety concerns.

Preparing the court application

Start with your driver's abstract, suspension notices, conviction records and any driving-prohibition orders. These documents help identify the correct procedure and the relief that may be available.

The application is generally supported by affidavits: sworn or affirmed statements setting out the relevant facts. Supporting documents may include employer evidence, proof of income, medical information, caregiving records and information about transportation alternatives.

Under Rule 39.01(5), an affidavit used on an application must generally contain facts within the person's own knowledge. Information and belief may be included for non-contentious facts if the source and the person's belief are identified. Cross-examination may be ordered. See Rule 39 on evidence.

The court process generally involves:

• Preparing a Notice of Application identifying the requested order, legal grounds and evidence.

• Filing and serving the materials on the Registrar, who must provide the Court with relevant documents in the Registrar's possession.

• Preparing the court record and legal submissions, including a pre-hearing brief unless the Court orders otherwise.

• Attending the hearing, where the Court considers eligibility, hardship, the evidence and the public interest.

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The applicable procedures appear in subsections 313(5) to 313(10) and Rule 38 on applications. Timing depends on the evidence, service requirements and court scheduling; approval is not guaranteed.

If an application is refused

Section 316.1 restricts repeat applications concerning the same revocation and suspension after a refusal under section 311 or 313. The provision requires three years to have elapsed since the last application concerning that suspension was disposed of.

That restriction on a fresh application is separate from an available appeal. 

For example, section 312 provides a 30-day filing deadline for an appeal from a qualifying section 311 decision. If you receive a refusal, seek advice promptly about the decision and any available remedy. See sections 312 and 316.1.

Before driving again

A favourable decision may still leave reinstatement requirements to complete, including applicable fees, other amounts owing and an assigned impaired-driver re-education course. Additional licence conditions and financial-responsibility requirements may also remain. See subsection 313(4) and sections 315 and 316.

Filing an application is not permission to drive. Before returning to the road, confirm that your driving privileges have actually been reinstated and that you meet all applicable conditions. Tell your lawyer about every suspension and prohibition affecting you.

Speak with Atlantic Defence Law

Atlantic Defence Law assists clients with licence-suspension matters in New Brunswick. We can review your driving history, assess which procedure may apply, prepare the evidence and represent you before the Court of King's Bench where appropriate.

Our office is in Moncton, with service available in English and French. If your situation also involves criminal charges, learn more about our impaired driving defence services.

Book a consultation or call 506-305-1883 to discuss your suspension and possible next steps.

This article provides general information about New Brunswick law and is not legal advice for a particular case.