835637 Alberta Ltd. et al. v. Moonraker Realty Inc., (2010) 364 N.B.R.(2d) 148 (CA)

• Judge: Deschênes, Robertson and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 30, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 364 N.B.R.(2d) 148 (CA);2010 NBCA 72

835637 Alta. v. Moonraker Realty (2010), 364 N.B.R.(2d) 148 (CA);

    364 R.N.-B.(2e) 148; 937 A.P.R. 148

MLB headnote and full text

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: [2010] N.B.R.(2d) TBEd. SE.030

Renvoi temp.: [2010] N.B.R.(2d) TBEd. SE.030

835637 Alberta Ltd., Trustee for the Maxine Moore Spousal Trust and as General Partner for the MMCK Realty Partnership (appellant) v. Moonraker Realty Inc. (respondent)

(24-10-CA; 2010 NBCA 72)

Indexed As: 835637 Alberta Ltd. et al. v. Moonraker Realty Inc.

Répertorié: 835637 Alberta Ltd. et al. v. Moonraker Realty Inc.

New Brunswick Court of Appeal

Deschênes, Robertson and Richard, JJ.A.

September 23, 2010.

Summary:

Résumé:

Moonraker Realty Ltd. sought a declaration that it possessed a right of way over lands belonging to 835637 Alberta Ltd. The application was filed after 835637 Alberta Ltd. erected a barricade preventing Moonraker from gaining access to the rear of its property. The application judge granted the declaratory relief and a permanent injunction enjoining 835637 Alberta Ltd. from interfering with Moonraker's use of the right of way, together with an ancillary order directing the removal of the barricade. 835637 Alberta Ltd. appealed.

The New Brunswick Court of Appeal allowed the appeal and set aside the order granted in the court below. The court held that there was a substantial dispute of fact and an order should issue converting the application to a trial as required by rule 38.09(b) of the Rules of Court. Moonraker was entitled to an interlocutory injunction enjoining 835637 Alberta Ltd. from interfering with Moonraker's use of the right of way pending the disposition of the action.

Barristers and Solicitors - Topic 801

Duty to court - Counsel as a witness - General - [See Practice - Topic 3077 ].

Injunctions - Topic 7123

Particular matters - Particular interests protected - Property rights - [See Practice - Topic 2493 ].

Practice - Topic 2493

Writ of summons, endorsements, originating summons and originating notices - Originating notices (incl. judicial review) - Conversion to or from formal action - Moonraker Realty Ltd. purchased two pieces of property from 835637 Alberta Ltd. - Moonraker claimed to be the registered owner of a right of way over another property owned by 835637 - The claim was supported by documents issued under the Land Titles Act - After 835637 erected a barricade preventing Moonraker from gaining access to the rear of its property, Moonraker applied for a declaration that it possessed a right of way over 835637's property - The application judge granted the declaratory relief and a permanent injunction enjoining 835637 from interfering with Moonraker's use of the right of way - 835637 appealed - The New Brunswick Court of Appeal allowed the appeal - The application judge erred in refusing to convert the application to an action - At least one substantial dispute of fact existed: whether the parties intended the sale of both properties to Moonraker would include a right of way over lands belonging to 835637 - While the documentary title to the two properties showed the right of way being claimed, there was credible evidence to suggest that this was not the intention of the parties - The court held that an order should issue converting the application to a trial as required by rule 38.09(b) - Moonraker was entitled to an interlocutory injunction preventing 835637 from interfering with Moonraker's use of the right of way as set out in the documents issued under the Land Titles Act - Those documents prevailed until the issue was resolved at trial.

Practice - Topic 3077

Applications and motions - Applications - Affidavit evidence - Content of - Moonraker Realty Ltd. sought a declaration that it possessed a right of way over lands belonging to 835637 Alberta Ltd. - Moonraker tendered an affidavit sworn by its Secretary-Treasurer (Price) in which Price engaged in a discussion of the circumstances surrounding the sale of two properties from 835637 to Moonraker and of the legal effect to be attributed to certain documents - With respect to one of the documents, Price based her opinion on the advice of counsel for Moonraker - At another point, she stated that she was advised, by the same counsel, that on the purchase of one of the properties, no Statement of Adjustments was signed and none of the correspondence between solicitors referred to the release or discontinuance of a right of way - The New Brunswick Court of Appeal stated that Price was neither qualified nor entitled to give opinion evidence as to the legal effect of documents issued under the Land Titles Act or signed by the parties - An affidavit for use on an application was to be confined to facts within the personal knowledge of the deponent (rule 39.01(5)) - The affidavit was also problematic in that a lawyer could not act as both counsel and a witness in the same legal proceeding - If counsel was unable to tender his or her own affidavit in a proceeding in which counsel was representing one of the parties, counsel could not tender an affidavit in which the affiant restated what he or she had been told by that counsel.

Practice - Topic 3082

Applications and motions - Applications - Disposition - Application to proceed as action - [See Practice - Topic 2493 ].

Practice - Topic 3663

Evidence - Affidavits - Striking out - Opinion - [See Practice - Topic 3077 ].

Practice - Topic 3678.1

Evidence - Affidavits - Use of - Affidavits made on information and belief of counsel - [See Practice - Topic 3077 ].

Avocats et notaires - Cote 801

Devoirs judiciaires - Avocat appelé à témoigner - Généralités - [Voir Barristers and Solicitors - Topic 801 ].

Injonctions - Cote 7123

Questions particulières - Protection d'intérêts particuliers - Droits de propriété - [Voir Injunctions - Topic 7123 ].

Procédure - Cote 2493

Bref d'assignation, mentions, assignations et avis introductifs d'instance - Avis introductifs d'instance - Modification en une action ordinaire - [Voir Practice - Topic 2493 ].

Procédure - Cote 3077

Requêtes et motions - Requêtes - Preuve par affidavit - Contenu - [Voir Practice - Topic 3077 ].

Procédure - Cote 3082

Requêtes et motions - Requêtes - Décision - Requête instruite comme une action - [Voir Practice - Topic 3082 ].

Procédure - Cote 3663

Preuve - Affidavits - Annulation - Opinion - [Voir Practice Topic 3663 ].

Procédure - Cote 3678.1

Preuve - Affidavits - Utilisation - Affidavits fondés sur l'information et la croyance de l'avocat - [Voir Practice - Topic 3678.1 ].

Cases Noticed:

New Brunswick (Minister of Family and Community Services) v. T.L.M. et al. (2009), 341 N.B.R.(2d) 33; 876 A.P.R. 33; 2009 NBCA 8, refd to. [para. 2].

Guttman v. Law Society of Manitoba (2010), 255 Man.R.(2d) 151; 486 W.A.C. 151; 2010 MBCA 66, refd to. [para. 2].

Kalin v. College of Teachers (Ont.) (2005), 198 O.A.C. 201 (Div. Ct.), refd to. [para. 2].

Vancouver (City) v. Picadilly Investments Ltd., [2010] B.C.T.C. Uned. 245; 2010 BCSC 245, refd to. [para. 2].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 2].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 2].

R. v. Penny (P.J.D.) (2010), 362 N.B.R.(2d) 255; 934 A.P.R. 255; 2010 NBCA 49, refd to. [para. 2].

Hughes v. Moncton (City) (2006), 304 N.B.R.(2d) 92; 788 A.P.R. 92; 2006 NBCA 83, refd to. [para. 14].

Statutes Noticed:

Rules of Court (N.B.), rule 38.09(b), rule 39.01(5) [para. 3].

Counsel:

Avocats:

James L. Mockler, for the appellant;

Matthew M. Tweedie, for the respondent.

This appeal was heard on June 30, 2010, before Deschênes, Robertson and Richard, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Robertson, J.A., in both official languages, on September 23, 2010.