O'Connell v. Executive Director of Assessment (N.B.), (2012) 393 N.B.R.(2d) 291 (TD)

• Judge: Clendening, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 22, 2012
• Jurisdiction: New Brunswick
• Citations: (2012), 393 N.B.R.(2d) 291 (TD);2012 NBQB 269

O'Connell v. Assessment Director (2012), 393 N.B.R.(2d) 291 (TD);

    393 R.N.-B.(2e) 291; 1017 A.P.R. 291

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Temp. Cite: [2012] N.B.R.(2d) TBEd. SE.009

Renvoi temp.: [2012] N.B.R.(2d) TBEd. SE.009

Carl Paul O'Connell and Katherine Grace O'Connell (applicants) v. Executive Director of Assessment (respondent)

(B-M-15-12; 2012 NBQB 269; 2012 NBBR 269)

Indexed As: O'Connell v. Executive Director of Assessment (N.B.)

Répertorié: O'Connell v. Executive Director of Assessment (N.B.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Bathurst

Clendening, J.

August 27, 2012.

Summary:

Résumé:

The applicants applied for an order that their real property in the Village of Nigadoo be classified as freehold timberland pursuant to s. 16(5) of the Assessment Act.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application with costs fixed at $750.

Estoppel - Topic 380

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters in issue - [See Estoppel - Topic 380.1 ].

Estoppel - Topic 380.1

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Procedural matters - The applicants applied for an order that their real property be classified as freehold timberland pursuant to s. 16(5) of the Assessment Act - A similar application with regard to the same property and same issue had been heard on June 16, 2011 - The judge in that case found that the applicants had not "met the procedural requirements as set out in section 16(6) of the Assessment Act" - The New Brunswick Court of Queen's Bench, Trial Division, held that the present application was not res judicata because the earlier matter was not decided on the merits of the case and consequently there was no final determination of the issues - See paragraph 7.

Real Property Tax - Topic 1553

Persons and property liable to assessment - Real property - Classification - [See Real Property Tax - Topic 5141 ].

Real Property Tax - Topic 5141

Valuation - Timberland and woodlots - General - The applicants applied for an order that their real property in the Village of Nigadoo be classified as freehold timberland pursuant to s. 16(5) of the Assessment Act - The property consisted of two adjoining lots, which were each less than 10 hectares, but totalled 13.9 hectares - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application - The Village of Nigadoo had exercised its zoning authority with respect to the properties - They were zoned as R-1 - The applicants were at liberty to continue removing timber from the properties and there was no non-conforming use to be protected - The applicants also did not comply with the requirement that they own more than 10 hectares - Neither property was over 10 hectares - The discretionary power given to the court under s. 16(7) of the Act could not be exercised because the conditions precedent, i.e., the issue of zoning and the size of the woodlots, created a complete impediment to the exercise of the court's jurisdiction to order the Director to classify the properties as requested.

Impôt foncier - Cote 1553

Personnes et biens sujets ུ l'imposition - Biens réels - Classification - [Voir Real Property Tax - Topic 1553 ].

Impôt foncier - Cote 5141

༄༅valuation - Exploitations forestiེres et terres ུ bois - Généralités - [Voir Real Property Tax - Topic 5141 ].

Préclusion - Cote 380

Préclusion par chose jugée - Exception de la chose jugée opposée aux procédures ultérieures - Questions en litige - [Voir Estoppel - Topic 380 ].

Préclusion - Cote 380.1

Préclusion par chose jugée - Exception de la chose jugée opposée aux procédures ultérieures - Affaires procédurales - [Voir Estoppel - Topic 380.1 ].

Cases Noticed:

New Brunswick Electric Power Commission v. International Brotherhood of Electrical Workers AFL-CIO-CLC, Local 1733 (1976), 16 N.B.R.(2d) 361; 21 A.P.R. 361 (C.A.), refd to. [para. 6].

Holt et al. v. Bathurst (City) et al., [2006] N.B.R.(2d) Uned. 3; 2006 NBQB 30, refd to. [para. 6].

Carson Construction (1999) Ltd. v. Moncton (City) (2012), 382 N.B.R.(2d) 296; 988 A.P.R. 296; 2012 NBCA 9, refd to. [para. 7].

Statutes Noticed:

Assessment Act, R.S.N.B. 1973, c. A-14, sect. 16(2) [para. 12]; sect. 16(5) [para. 3]; sect. 16(7) [para. 12] sect. 17 [para. 12].

Counsel:

Avocats:

Basile Chiasson, Q.C., for the applicants;

Denis G. Theriault, for the respondent.

This application was heard on August 22, 2012, before Clendening, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Bathurst, who delivered the following decision on August 27, 2012.