Carson Construction (1999) Ltd. v. Moncton (City), (2012) 382 N.B.R.(2d) 296 (CA)

• Judge: Bell, Quigg and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: December 11, 2009
• Jurisdiction: New Brunswick
• Citations: (2012), 382 N.B.R.(2d) 296 (CA);2012 NBCA 9

Carson Constr. Ltd. v. Moncton (2012), 382 N.B.R.(2d) 296 (CA);

    382 R.N.-B.(2e) 296; 988 A.P.R. 296

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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: [2012] N.B.R.(2d) TBEd. FE.004

Renvoi temp.: [2012] N.B.R.(2d) TBEd. FE.004

Carson Construction (1999) Ltd. (respondent/appellant) v. City of Moncton (applicant/respondent)

(4-10-CA; 2012 NBCA 9)

Indexed As: Carson Construction (1999) Ltd. v. Moncton (City)

Répertorié: Carson Construction (1999) Ltd. v. Moncton (City)

New Brunswick Court of Appeal

Bell, Quigg and Green, JJ.A.

February 2, 2012.

Summary:

Résumé:

A city sought an order restraining a construction company (Carson) from using its property as a construction/contractor's yard, a repair and maintenance facility and an office, and immediately removing from the property any and all construction equipment, including a stone crusher and stockpiles of stone and other aggregate. An application judge found in Carson's favour, concluding that the activities being carried out on the property were within a fair definition of the pre-existing use that benefited from the legal non-conforming right. Over a year later, the city sought an order that Carson be restrained from using the property as a construction/contractor's yard, and/or for crushing stone or any other aggregate and immediately removing from the property all equipment related to the operation of a contractors/construction yard and the crushing of stone or aggregate.

The New Brunswick Court of Queen's Bench, in a decision not reported in this series of reports, but indexed as 2009 NBQB 328, denied the request to restrain Carson from using the property as a construction/contractor's yard and the request that Carson be ordered to remove equipment from the property on the basis of res judicata. However, the court held that Carson's right to conduct a stone crushing operation on the property was not res judicata, as it had not been squarely before the court on the earlier application. The court concluded that the legal non-conforming right which applied to Carson's use of the property did not permit it to carry on a rock crushing operation on the property. The court declined to award the city costs. Carson appealed. The city cross-appealed respecting costs.

The New Brunswick Court of Appeal dismissed the appeal and cross-appeal.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - A city sought an order restraining a construction company (Carson) from using its property as a construction/contractor's yard, a repair and maintenance facility and an office, and immediately removing from the property any and all construction equipment, including a stone crusher and stockpiles of stone and other aggregate - An application judge found in Carson's favour - Over a year later, the city sought an order that Carson be restrained from using the property as a construction/contractor's yard, and/or for crushing stone or any other aggregate and immediately removing from the property all equipment related to the operation of a contractors/construction yard and the crushing of stone or aggregate - The application judge denied the request to restrain Carson from using the property as a construction/contractor's yard and the request that Carson be ordered to remove equipment from the property on the basis of res judicata - However, the application judge held that Carson's right to conduct a stone crushing operation on the property was not res judicata, as it had not been squarely before the court on the earlier application - The New Brunswick Court of Appeal dismissed Carson's appeal - In the first application, the city pursued the broad issue of operating a construction/contractor's yard - It did not seek to prevent Carson from using the property as a stone crushing operation - The inclusion of a "stone crusher" in the list of equipment the city sought to have removed in the first application did not equate to its inclusion in the list of activities the city sought to have prohibited - See paragraphs 13 to 23.

Land Regulation - Topic 2803

Land use control - Exemptions - Nonconforming use - Change of - An application judge held that the legal non-conforming right which applied to a construction company's use of a property as a construction/contractor's yard did not permit it to carry on a rock crushing operation on the property - The company appealed - It argued that the application judge erred in finding that stone crushing was not a legal non-conforming use of the property and was not an integral part of, or incidental to, the operation of the property as a construction/contractor's yard - The New Brunswick Court of Appeal dismissed the appeal - The application judge found that stone crushing was not "an intensification of pre-existing activity" and was "too remote from earlier activities protected as a legal non-conforming use, i.e. beyond any fair definition of the pre-existing use" - The application judge's conclusions were reasonable - The court would not interfere - See paragraphs 24 to 25.

Practice - Topic 7021

Costs - Party and party costs - Successful party - Exception - Conduct - An application judge held that the legal non-conforming right which applied to a construction company's use of a property as a construction/contractor's yard did not permit it to carry on a rock crushing operation on the property - Although the applicant city was largely successful on the application, the application judge denied the city its costs and awarded costs to the construction company - The application judge found that the issue of the use of the property as a rock crushing operation should have been squarely put before the court by the city in a previous application - The city's failure to do so resulted in an unnecessary second application - The process caused unnecessary costs and unwarranted demand on the time of the parties, other interested persons and the court - The New Brunswick Court of Appeal dismissed the city's appeal respecting the costs order - The application judge was entirely reasonable in determining that the circumstances of this case warranted a different approach to the awarding of costs - He exercised his discretion judicially - See paragraphs 26 to 29.

Aménagement et urbanisme - Cote 2803

Contrôle de l'utilisation des sols - Exemptions - Usage non conforme - Modifications - [Voir Land Regulation - Topic 2803 ].

Préclusion - Cote 386

Préclusion par chose jugée - Exception de la chose jugée opposée aux procédures ultérieures - Questions tranchées dans des procédures antérieures - [Voir Estoppel - Topic 386 ].

Procédure - Cote 7021

Dépens - Dépens entre parties - Droits aux dépens entre parties - Partie gagnante - Exceptions - Conduite - [Voir Practice - Topic 7021 ].

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 14].

McNichol v. Co-operators General Insurance Co. (2006), 298 N.B.R.(2d) 44; 775 A.P.R. 44; 2006 NBCA 54, refd to. [para. 15].

Comeau et al. v. Breau et al. (1994), 145 N.B.R.(2d) 329; 372 A.P.R. 329 (C.A.), refd to. [para. 20].

Saint-Romuald (Ville) v. Olivier et al., [2001] 2 S.C.R. 898; 275 N.R. 1; 2001 SCC 57, refd to. [para. 24].

C.J.G. v. L.T.G. (2011), 369 N.B.R.(2d) 202; 952 A.P.R. 202; 2011 NBCA 12, refd to. [para. 26].

Doucet et al. v. Spielo Manufacturing Inc. et al. (2011), 372 N.B.R.(2d) 1; 961 A.P.R. 1; 2011 NBCA 44, refd to. [para. 27].

Counsel:

Avocats:

Brian F.P. Murphy, for the appellant;

Basile Chiasson, Q.C., for the respondent.

This appeal and cross-appeal were heard on December 11, 2009, before Bell, Quigg and Green, JJ.A., of the New Brunswick Court of Appeal. Green, J.A., released the following reasons for judgment for the court in both official languages on February 2, 2012.