513012 N.B. Ltd. et al. v. New Brunswick, (2013) 410 N.B.R.(2d) 272 (TD)

• Judge: Morrison, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 03, 2013
• Jurisdiction: New Brunswick
• Citations: (2013), 410 N.B.R.(2d) 272 (TD);2013 NBQB 307

513012 N.B. v. N.B. (2013), 410 N.B.R.(2d) 272 (TD);

    410 R.N.-B.(2e) 272; 1065 A.P.R. 272

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.B.R.(2d) TBEd. OC.026

Renvoi temp.: [2013] N.B.R.(2d) TBEd. OC.026

513012 N.B. Ltd. and Fred Paget (plaintiffs) v. Province of New Brunswick (defendant)

(W/C/8/08; 2013 NBQB 307; 2013 NBBR 307)

Indexed As: 513012 N.B. Ltd. et al. v. New Brunswick

Répertorié: 513012 N.B. Ltd. et al. v. New Brunswick

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Woodstock

Morrison, J.

September 19, 2013.

Summary:

Résumé:

The plaintiffs' lease and later its license from the defendant Crown to operate the Woolastook seasonal campground were cancelled. The plaintiffs brought an action alleging wrongful termination of the lease. The plaintiffs sought an order declaratory of the rights of the parties respecting the lease and lands in lieu of an interlocutory injunction, pursuant to rule 40.01 of the Rules of Court and ss. 14(2) and (3) of the Proceedings Against the Crown Act.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 328 N.B.R.(2d) 312; 841 A.P.R. 312, dismissed the motion on the basis that the plaintiffs' claim was vexatious. The defendant moved for summary judgment. In the alternative, the defendant moved for dismissal of the action for delay pursuant to rule 26.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion for summary judgment. The court ordered that the action be set down for trial no later than the October 2014 Motions Day, failing which the plaintiffs' action would be dismissed.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - The plaintiffs' lease and later its license from the defendant Crown to operate the Woolastook seasonal campground were cancelled - The plaintiffs brought an action alleging wrongful termination of the lease - The plaintiffs sought an order declaratory of the rights of the parties respecting the lease and lands in lieu of an interlocutory injunction, pursuant to rule 40.01 of the Rules of Court and ss. 14(2) and (3) of the Proceedings Against the Crown Act - Garnett, J., dismissed the motion on the basis that the plaintiffs' claim was vexatious - The defendant moved for summary judgment - The defendant relied on the doctrine of abuse of process and the related doctrines of res judicata and issue estoppel in support of its motion - The defendant argued that the grounds for the cancellation of the lease and subsequent license to operate were no longer an issue to be determined as the issue was finally determined by Garnett, J., when she found that the lease was lawfully terminated and as such the plaintiffs' claim was vexatious - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion for summary judgment - Issue estoppel did not arise in a summary judgment motion from the refusal to grant an interlocutory injunction - The interlocutory decision was fundamentally different from a decision with respect to summary judgment - The respondent in a summary judgment application was required to "put his best foot forward" in response to the motion for summary judgment - That was not the case with respect to a motion for an interlocutory injunction - Further, there were two different tests to be applied when determining whether there was a serious issue to be tried (interlocutory injunction) and in determining whether there was no merit to a cause of action (summary judgment) - The standard for summary judgment was a stringent one - The court was not satisfied that the outcome of this case was a foregone conclusion - See paragraphs 6 to 23.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiffs' lease and later its license from the defendant Crown to operate the Woolastook seasonal campground were cancelled - In 2008, the plaintiffs brought an action alleging wrongful termination of the lease - The plaintiffs sought an order declaratory of the rights of the parties respecting the lease and lands in lieu of an interlocutory injunction, pursuant to rule 40.01 of the Rules of Court and ss. 14(2) and (3) of the Proceedings Against the Crown Act - Garnett, J., dismissed the motion on the basis that the plaintiffs' claim was vexatious - The defendant moved for dismissal for delay pursuant to rule 26.01(c) - The New Brunswick Court of Queen's Bench, Trial Division, ordered that the action be set down for trial no later than the October 2014 Motions Day, failing which the plaintiffs' action would be dismissed - While the delay occasioned in the action (four years) did not rise to the level justifying dismissal, it was nonetheless unacceptable - It was clear that this action was likely to continue to languish unless some conditions were imposed - See paragraphs 24 to 30.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Estoppel - Topic 386 ].

Préclusion - Cote 386

Préclusion résultant de la chose jugée - Exception de la chose jugée opposée aux procédures ultérieures - Questions tranchées dans des procédures antérieures (y compris la validité des lois) - [Voir Estoppel - Topic 386 ].

Procédure - Cote 5360

Rejet de l'action - Motifs - Généralités et défaut de procéder - Retard - [Voir Practice - Topic 5360 ].

Procédure - Cote 5702

Jugements et ordonnances - Jugements sommaires - Compétence ou conditions d'ouverture ou opportunité - [Voir Practice - Topic 5702 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 2].

Ripulone v. Pontecorvo (1989), 104 N.B.R.(2d) 56; 261 A.P.R. 56 (C.A.), refd to. [para. 3].

MacWilliams v. AMEC Americas Ltd. (2012), 388 N.B.R.(2d) 254; 1006 A.P.R. 254 (C.A.), refd to. [para. 3].

Brunswick News Inc. v. Sears (2012), 390 N.B.R.(2d) 167; 1011 A.P.R. 167; 2012 NBCA 32, refd to. [para. 4].

Shareline Systems Ltd. v. New Brunswick et al. (2001), 235 N.B.R.(2d) 162; 607 A.P.R. 162 (C.A.), refd to. [para. 5].

Morrow v. Aviva Canada Inc. (2004), 279 N.B.R.(2d) 77; 732 A.P.R. 77 (C.A.), refd to. [para. 5].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 6].

Demontigny v. Tadros, [2005] B.C.T.C. 156; 2005 BCSC 156, refd to. [para. 7].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 8].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 9].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 10].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1, refd to. [para. 10].

Workers' Compensation Board (B.C.) v. Figliola - see/voir Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Downey v. Keenan Truck Repair Inc. (2012), 396 N.B.R.(2d) 279; 1024 A.P.R. 279; 2012 NBQB 347, refd to. [para. 10].

Engineered Controls International Inc. v. Gas Equipment Supplies Inc. et al., [2003] B.C.T.C. 697; 2003 BCSC 697, refd to. [para. 11].

Penner v. Niagara Regional Police Services Board et al. (2013), 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 14].

Allen v. McAlpine (Sir Alfred) & Sons Ltd., [1968] 1 All E.R. 543 (C.A.), refd to. [para. 25].

Michaud v. Robertson et al., [2003] N.B.R.(2d) (Supp.) No. 47 (T.D.), refd to. [para. 25].

Saulnier v. Dartmouth Fuels Ltd. (1991), 106 N.S.R.(2d) 425; 288 A.P.R. 425 (C.A.), refd to. [para. 25].

Savoie v. Fagan et al. (1998), 165 N.S.R.(2d) 276; 495 A.P.R. 276; 1998 CarswellNS 36 (C.A.), refd to. [para. 25].

Moir v. Landry (1991), 104 N.S.R.(2d) 281; 283 A.P.R. 281 (C.A.), refd to. [para. 28].

Betts v. Norris (1991), 120 N.B.R.(2d) 384; 302 A.P.R. 384 (C.A.), refd to. [para. 29].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (3rd Ed. 2010), generally [para. 12].

Counsel:

Avocats:

Lynne P. Lenihan, for the plaintiffs;

Isabel-Renée Lavoie Daigle, for the defendant.

These motions were heard on June 3, 2013, by Morrison, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Woodstock, who delivered the following decision on September 19, 2013.