Cherubini Metal Works Ltd. v. New Brunswick Power Corp., 2004 NBQB 378

• Judge: Rideout, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 05, 2004
• Jurisdiction: New Brunswick
• Citations: 2004 NBQB 378;(2004), 280 N.B.R.(2d) 124 (TD)

Cherubini Metal v. N.B. Power (2004), 280 N.B.R.(2d) 124 (TD);

    280 R.N.-B.(2e) 124; 734 A.P.R. 124

MLB headnote and full text

[French language version follows English language version]

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

....................

Temp. Cite: [2004] N.B.R.(2d) TBEd. OC.038

Cherubini Metal Works Limited (plaintiff) v. New Brunswick Power Corporation (defendant)

(M/C/0587/03; 2004 NBQB 378)

Indexed As: Cherubini Metal Works Ltd. v. New Brunswick Power Corp.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

October 22, 2004.

Summary:

The parties presented a stated case to answer the following question: whether the Public Purchasing Act (N.B.) and its Regula­tions applied to the evaluation of a tender "for the construction of the structural steel for the Main FGD Building, the Limestone Storage and Grinding Building and the Electrical Building for the Coleson Cove Refurbishment, Coleson Cove Generating Station."

The New Brunswick Court of Queen's Bench, Trial Division, ruled that the Public Purchasing Act and its Regulations did not apply.

Crown - Topic 1109

Contracts with Crown - Building contracts - Tenders - The New Brunswick Court of Queen's Bench, Trial Division, ruled that the Public Purchasing Act (N.B.) and its Regulations did not apply to the evaluation of a tender "for the construction of the structural steel for the Main FGD Building, the Limestone Storage and Grinding Build­ing and the Electrical Building for the Coleson Cove Refurbishment, Coleson Cove Generating Station" because those legislative provisions dealt with the provi­sion of supplies and services and there was nothing in the definition of supplies and services that gave any suggestion that the words were associated with the construc­tion, repair or alteration of land or struc­tures.

Cases Noticed:

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, consd. [para. 9].

Hawkes v. Nolais et al. (2002), 253 N.B.R.(2d) 371; 660 A.P.R. 371 (C.A.), consd. [para. 10].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 212 D.L.R.(4th) 1; 2002 CarswellBC 851, consd. [para. 11].

Miramichi Pulp & Paper Inc. v. Director of Assessment (N.B.) (1996), 172 N.B.R.(2d) 290; 439 A.P.R. 290 (C.A.), consd. [para. 12].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, consd. [para. 13].

Statutes Noticed:

Public Purchasing Act, R.S.N.B. 1973, c. P-23.1, sect. 3(1), sect. 3.1 [para. 22].

Authors and Works Noticed:

Hansard (N.B.) - see New Brunswick, Hansard, Legislative Assembly.

New Brunswick, Hansard, Legislative Assembly (March 6, 1974), generally [para. 15].

New Brunswick, Hansard, Legislative Assembly, Synoptic Report of the Pro­ceedings of (March 5, 1974), generally [para. 14].

Counsel:

Eric LeDrew, on behalf of the plaintiff;

Kenneth B. McCullogh, Q.C., on behalf of the defendant.

This stated case was heard on October 5, 2004, by Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on October 22, 2004.