Duivenvoorden v. Belarus Tractor Canada LLP, (2005) 290 N.B.R.(2d) 192 (TD)

• Judge: Glennie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 23, 2005
• Jurisdiction: New Brunswick
• Citations: (2005), 290 N.B.R.(2d) 192 (TD);2005 NBQB 388

Duivenvoorden v. Belarus Tractor (2005), 290 N.B.R.(2d) 192 (TD);

    290 R.N.-B.(2e) 192; 755 A.P.R. 192

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Temp. Cite: [2005] N.B.R.(2d) TBEd. NO.020

Renvoi temp.: [2005] N.B.R.(2d) TBEd. NO.020

Joop Duivenvoorden (plaintiff) v. Belarus Tractor Canada LLP (defendant)

(S/C/391/01; 2005 NBQB 388; 2005 NBBR 388)

Indexed As: Duivenvoorden v. Belarus Tractor Canada LLP

Répertorié: Duivenvoorden v. Belarus Tractor Canada LLP

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Glennie, J.

September 23, 2005.

Summary:

Résumé:

The plaintiff sued Belarus Tractor Canada, asserting that a Belarus tractor that he had purchased was inoperable and defective and unfit for the purpose for which it was intended. Belarus Tractor admitted in its statement of defence that its predecessor was the manufacturer of Belarus tractors. Belarus Tractor moved to amend the statement of defence by recanting the admission.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion. The court granted the plaintiff an adjournment of the trial and leave to conduct further discovery. The court awarded the plaintiff costs for the waste and delay caused by the defendant.

Practice - Topic 2128

Pleadings - Amendment of pleadings - Statement of defence - To withdraw admission - The plaintiff sued Belarus Tractor Canada (Belarus) respecting a Belarus tractor that he had purchased - In a statement of defence dated April 11, 2002, Belarus admitted that its predecessor was the manufacturer of Belarus tractors - The trial was set to commence on September 21, 2005 - On September 1, 2005, Belarus moved to amend the statement of defence by recanting the admission - The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion where the admission was false and due to inadvertence and its withdrawal would not result in an injustice to the plaintiff - The court granted the plaintiff an adjournment of the trial and leave to conduct further discovery - The court awarded the plaintiff costs for the waste and delay caused by the defendant.

Practice - Topic 7470.3

Costs - Solicitor and client costs - Entitlement to - Thrown-away costs - [See Practice - Topic 2128 ].

Sale of Goods - Topic 63

General - Definitions - Manufacturer - The plaintiff sued Belarus Tractor Canada (Belarus) respecting a Belarus tractor that he had purchased - Belarus's statement of defence admitted that its predecessor was the manufacturer of Belarus tractors - Belarus moved to amend the statement of defence by recanting the admission - The Sale of Goods Act did not define "manufacturer" - In allowing the motion, the New Brunswick Court of Queen's Bench, Trial Division, concluded that the admission had been false - The tractors were manufactured by an arms length company in Belarus and shipped to Canada in a completely operative state - Belarus's conduct of adding a few items such as mirrors and an electric hour meter and substituting batteries did not render it a manufacturer of tractors - See paragraphs 11 to 35.

Procédure - Cote 2128

Plaidoiries - Modification des plaidoiries - Exposé de la défense - Retrait d'un aveu - [Voir Practice - Topic 2128 ].

Procédure - Cote 7470.3

Dépens - Dépens sur la base avocat-client - Droit - Dépens engagés inutilement - [Voir Practice - Topic 7470.3 ].

Vente d'objets - Cote 63

Généralités - Définitions - Fabricant - [Voir Practice - Topic 63 ].

Words and Phrases

Manufacturer - The New Brunswick Court of Queen's Bench, Trial Division, considered the meaning of "manufacturer" - See paragraphs 11 to 35.

Cases Noticed:

Lyons v. Lyons Estate (1989), 99 N.B.R.(2d) 220; 250 A.P.R. 220 (Q.B. Fam. Div.), refd to. [para. 8].

Baydon Corp. et al. v. DuPont Glore Fordan Canada Ltd. et al. (1974), 4 O.R.(2d) 290 (H.C.), refd to. [para. 8].

Trianthlon Leasing Inc. v. Juniberry Corp. and Hong (1995), 157 N.B.R.(2d) 217; 404 A.P.R. 217 (C.A.), refd to. [para. 9].

Béchard v. Ouellet (1999), 210 N.B.R.(2d) 246; 536 A.P.R. 246 (C.A.), refd to. [para. 10].

Great Lakes Power Ltd. v. Regional Assessment Commissioner, Region No. 31 et al. (1996), 6 M.P.L.P.(3d) 213 (Ont. Mun. Bd.), refd to. [para. 27].

Minister of National Revenue v. Dominion Shuttle Co. (Ltd.) (1933), 72 Que. C.S. 15 (S.C.), refd to. [para. 27].

Ford Motor Co. of Canada Ltd. v. Minister of National Revenue (1994), 85 F.T.R. 116 (T.D.), dist. [para. 28].

Chabot v. Ford Motor Co. of Canada Ltd. et al. (1982), 39 O.R.(2d) 162 (H.C.), dist. [para. 30].

Fiat Auto Canada Ltd. v. R., [1984] 1 F.C. 203 (T.D.), refd to. [para. 31].

Counsel:

John M. McNair, for Joop Duivenvoorden;

Richard A. Northrup, for Belarus Tractor, Canada LLP.

Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, heard this motion on September 21 and 22, 2005 and delivered the following judgment orally on September 23, 2005.