Anglican Parish v. Oceanic Camping, 2015 NBQB 112

Judge:McNally, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:May 13, 2015
Jurisdiction:New Brunswick
Citations:2015 NBQB 112;(2015), 436 N.B.R.(2d) 187 (TD)
 
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Anglican Parish v. Oceanic Camping (2015), 436 N.B.R.(2d) 187 (TD);

    436 R.N.-B.(2e) 187; 1139 A.P.R. 187

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JN.008

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.008

The Corporation of the Anglican Parish of Shediac (plaintiff) v. Oceanic Camping Resort Inc. (defendant)

(MC/27/2015; 2015 NBQB 112; 2015 NBBR 112)

Indexed As: Corporation of the Anglican Parish of Shediac v. Oceanic Camping Resort Inc.

Répertorié: Corporation of the Anglican Parish of Shediac v. Oceanic Camping Resort Inc.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

McNally, J.

May 29, 2015.

Summary:

Résumé:

The plaintiff, the Corporation of the Anglican Parish of Shediac, brought a motion for an order striking out paragraphs 7, 8, 9, 14 and 18(c) of the defendant Oceanic Camping Resort Inc.'s Statement of Defence and Counterclaim. The Parish submitted that the impugned paragraphs referred to or made mention of confidential bona fide negotiations entered into between the Parish and Oceanic for the purpose of attempting to settle the dispute between them which gave rise to the action. As such, the Parish argued that the existence of the communications and negotiations, as well as their content, were privileged as a matter of public policy.

The New Brunswick Court of Queen's Bench, Trial Division, struck out paragraphs 7, 8, 14 and 18(c) of Oceanic's Statement of Defence and Counterclaim without leave to amend. Paragraph 9 was not ordered struck out as standing alone and following the striking of the offending paragraphs it did not result in any breach of the negotiation privilege. The court fixed and ordered costs payable forthwith from Oceanic to the Parish in the amount of $3,500.

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded - [See Practice - Topic 9872 ].

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - The plaintiff, the Corporation of the Anglican Parish of Shediac, brought a motion for an order striking out certain paragraphs of the defendant Oceanic Camping Resort Inc.'s Statement of Defence and Counterclaim - The Parish submitted that the impugned paragraphs referred to or made mention of confidential bona fide negotiations entered into between the Parish and Oceanic for the purpose of attempting to settle the dispute between them which gave rise to the action - As such, the Parish argued that the existence of the communications and negotiations, as well as their content, were privileged - Oceanic opposed the motion - Oceanic argued that the trial judge, not a motion judge, should determine the issue of privilege at trial after a total review of the factual matrix - The New Brunswick Court of Queen's Bench, Trial Division, stated that "The first and obvious difficulty with such a position is that if that were the case in circumstances such as this it would defeat the purpose of the settlement privilege rule, which is to encourage parties to have full and frank discussions in efforts to resolve disputes secure in the knowledge that their discussions will not be disclosed and used against them in subsequent proceedings. Moreover, the Parish brings its motion and claim for relief pursuant to the provisions of Rule 27.09 that provide the authority to the court to strike out a pleading, a portion of it or any other document at any time" - See paragraphs 25 to 26.

Practice - Topic 9867

Settlements - Disclosure (incl. privilege and admissibility issues) - [See Practice - Topic 9872 ].

Practice - Topic 9872

Settlements - Confidentiality - The plaintiff, the Corporation of the Anglican Parish of Shediac, brought a motion for an order striking out certain paragraphs of the defendant Oceanic Camping Resort Inc.'s Statement of Defence and Counterclaim - The Parish submitted that the impugned paragraphs referred to or made mention of confidential bona fide negotiations entered into between the Parish and Oceanic for the purpose of attempting to settle the dispute between them which gave rise to the action - As such, the Parish argued that the existence of the communications and negotiations, as well as their content, were privileged - Oceanic asserted that the Parish had not established the requirements to invoke settlement negotiation privilege and, even if the requirements of settlement negotiation had been established, the privilege was subject to an exception for bad faith negotiations - The New Brunswick Court of Queen's Bench, Trial Division, found that the requirements for the claim of negotiation settlement privilege had been established - With respect to Oceanic's allegation of bad faith, the court stated that "it is a somewhat novel argument to suggest that a party preparing to proceed with a potential court action to judicially resolve a dispute between the parties while at the same time trying to resolve it through a negotiated settlement is in some way acting in bad faith" - More significantly, Oceanic had not pleaded "bad faith" in its Statement of Defence and Counterclaim - Oceanic had not established on the balance of probabilities that any exception to the settlement privilege applied - See paragraphs 9 to 24.

Procédure - Cote 1335

Plaidoiries - Les questions en litige - Obligation de plaider les questions qui seront soulevées - [Voir Practice - Topic 1335 ].

Procédure - Cote 2233

Plaidoiries - Radiation des plaidoiries - Motifs - Privilège ou immunité - [Voir Practice - Topic 2233 ].

Procédure - Cote 9867

Règlements amiables - Divulgation (y compris questions de privilེge et admissibilité) - [Voir Practice - Topic 9867 ].

Procédure - Cote 9872

Règlements amiables - Confidentialité - [Voir Practice - Topic 9872 ].

Cases Noticed:

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al., [2013] 2 S.C.R. 623; 446 N.R. 35; 332 N.S.R.(2d) 1; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 7].

Statutes Noticed:

Rules of Court (N.B.), rule 27.09 [para. 26].

Counsel:

Avocats:

Edwin G. Ehrhardt, Q.C., and Michel Arsenault, for the plaintiff/moving party;

James E. Fowler, for the defendant/responding party.

This motion was heard on May 13, 2015, before McNally, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on May 29, 2015.

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