Estabrooks v. New Brunswick Real Estate Association, 2014 NBCA 48

• Judge: Larlee, Robertson and Bell, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 24, 2013
• Jurisdiction: New Brunswick
• Citations: 2014 NBCA 48;(2014), 422 N.B.R.(2d) 121 (CA)

Estabrooks v. NBREA (2014), 422 N.B.R.(2d) 121 (CA);

    422 R.N.-B.(2e) 121; 1096 A.P.R. 121

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[French language version follows English language version]

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

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Temp. Cite: [2014] N.B.R.(2d) TBEd. JL.039

Renvoi temp.: [2014] N.B.R.(2d) TBEd. JL.039

New Brunswick Real Estate Association (appellant) v. Larry Estabrooks (respondent)

(6-13-CA; 2014 NBCA 48)

Indexed As: Estabrooks v. New Brunswick Real Estate Association

Répertorié: Estabrooks v. New Brunswick Real Estate Association

New Brunswick Court of Appeal

Larlee, Robertson and Bell, JJ.A.

July 17, 2014.

Summary:

Résumé:

The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct. The Committee assessed costs against Estabrooks and imposed a fine. Estabrooks appealed.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2003), 261 N.B.R.(2d) 260; 685 A.P.R. 260, allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks. In 2009, Estabrooks sued the NBREA for malicious prosecution.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the action. The NBREA appealed.

The New Brunswick Court of Appeal allowed the appeal.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct - Estabrooks appealed - A Queen's Bench judge allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks - In 2009, Estabrooks sued the NBREA for malicious prosecution - The trial judge allowed the action - The judge rendered a 44 page, 167 paragraph decision - One hundred and five paragraphs of the decision were direct reproductions (cut and pasted) from the briefs submitted by the parties - Of the remaining 62 paragraphs, 23 dealt with contentious issues - The NBREA appealed, asserting that the trial judge was induced into making three serious errors in law because he made the procedural error of cutting and pasting large parts of Estabrooks' written submissions - The New Brunswick Court of Appeal stated that "trial judges should be aware that it is desirable that they express their conclusions in their own words. If they decide to cut and paste large portions of parties' submissions they will be scrutinized in accordance with the Supreme Court of Canada's decision of Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30 ... to determine if the incorporation is such that a reasonable person would conclude that the judge did not put his or her mind to the issues and decide them independently and impartially. If so, the judgment can be set aside: '[t]he onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently' ... . As noted by McLachlin C.J. for a unanimous Court, extensive copying is to be discouraged, but lack of originality does not, in and of itself, rebut the presumption of judicial impartiality and integrity." - See paragraph 14.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct - Estabrooks appealed - A Queen's Bench judge allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks - In 2009, Estabrooks sued the NBREA for malicious prosecution - The trial judge allowed the action - The NBREA appealed - At issue was, inter alia, whether a claim for malicious prosecution should be permitted against a provincial self-regulating body such as the NBREA - The New Brunswick Court of Appeal allowed the appeal - The elements of the tort of malicious prosecution were (1) the proceedings must have been initiated by the defendant; (2) the proceedings must have terminated in favour of the plaintiff; (3) the absence of reasonable and probable cause; and (4) malice or a primary purpose other than that of carrying the law into effect - Estabrooks did not plead vicarious liability - Nor did he join individuals in the malicious prosecution action - Neither the complainant, the lawyer who handled the complaint, nor the Registrar, was named as a party, so in the case at bar, the allegation of malicious prosecution was made solely against the NBREA - Putting aside the issue of vicarious liability, Estabrooks had to name the individuals who allegedly acted with malice in order to make out the specific malice requirement of the tort of malicious prosecution in the action against the NBREA - The failure to identify one or more tortfeasors was fatal to the action - The discipline committees of self-regulating provincial professional associations could not be sued by way of, and could not be found liable for, the tort of malicious prosecution - See paragraphs 17 to 57.

Torts - Topic 6152

Abuse of legal procedure - Malicious prosecution - Elements of - The Discipline Committee of the New Brunswick Real Estate Association (NBREA) held that Estabrooks had engaged in professional misconduct - Estabrooks appealed - A Queen's Bench judge allowed the appeal, holding that the Committee lacked jurisdiction to hear the complaint against Estabrooks - In 2009, Estabrooks sued the NBREA for malicious prosecution - The trial judge allowed the action - The NBREA appealed - The New Brunswick Court of Appeal allowed the appeal - This was a relatively minor complaint that dealt with one act of alleged misconduct: Estabrooks failed to write a letter of apology - There was no prosecution here - The process was begun by the receipt by the Registrar of a written complaint from an individual member - The Registrar then had to act within the statutory framework and refer the complaint to the Complaints Committee - The Complaints Committee, in accordance with the New Brunswick Real Estate Association Act, was not required to hold a hearing or give anybody the right to make oral submissions but to make a preliminary evaluation, to consider and investigate the conduct or competence of a member - This was not a quasi-criminal inquiry; it was an inquiry by the Discipline Committee into the conduct of a member - No improper purpose had been identified and malice had not been proved - In any case, there was no evidence that Estabrooks suffered any actual damage - The failure of Estabrooks to plead vicarious liability and the errors the trial judge made with respect to the application of the Nelles test all lead the court to the conclusion that even if the tort of malicious prosecution could be said to apply to professional disciplinary proceedings, liability had not been established on the facts - No tortious conduct could be attributed to the NBREA - See paragraphs 58 to 72.

Torts - Topic 6154

Abuse of legal proceedings - Malicious prosecution - Malice - General - [See first Torts - Topic 6152 ].

Torts - Topic 6163

Abuse of legal procedure - Malicious prosecution - Persons responsible - [See first Torts - Topic 6152 ].

Torts - Topic 6164

Abuse of legal procedure - Malicious prosecution - Actions against tribunals (incl. professional associations, discipline committees, etc.) - [See both Torts - Topic 6152 ].

Délits civils - Cote 6152

Abus de recours - Poursuite malveillante - Éléments - [Voir Torts - Topic 6152 ].

Délits civils - Cote 6154

Abus de recours - Poursuite malveillante - Malveillance - Généralités - [Voir Torts - Topic 6154 ].

Délits civils - Cote 6163

Abus de recours - Poursuite malveillante - Personnes responsables - [Voir Torts - Topic 6163 ].

Délits civils - Cote 6164

Abus de recours - Poursuite malveillante - Actions contre les tribunaux (y compris les associations professionnelles, les comités de discipline, etc.) - [Voir Torts - Topic 6164 ].

Tribunaux - Cote 583

Juges - Devoirs - Motifs de décision - [Voir Courts - Topic 583 ].

Cases Noticed:

Cojocaru v. British Columbia Women's Hospital and Health Center et al. (2013), 445 N.R. 138; 336 B.C.A.C. 1; 574 W.A.C. 1; 2013 SCC 30, refd to. [para. 14].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, appld. [paras. 15, 81].

Godin v. Star-Key Enterprises Ltd. (2006), 305 N.B.R.(2d) 180; 791 A.P.R. 180; 2006 NBCA 91, refd to. [para. 16].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 16].

Doiron v. Haché (2005), 290 N.B.R.(2d) 79; 755 A.P.R. 79; 2005 NBCA 75, refd to. [para. 16].

LeBlanc v. Fundy Drywall Ltd. et al. (2014), 414 N.B.R.(2d) 339; 1075 A.P.R. 339; 2014 NBCA 2, refd to. [para. 16].

Crawford Adjusters et al. v. Sagicor General Insurance (Cayman) Ltd. et al., [2013] 4 All E.R. 8; 446 N.R. 201; [2013] UKPC 17, refd to. [paras. 18, 74].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 20].

Proulx v. Québec (Procureur général), [2001] 3 S.C.R. 9; 276 N.R. 201; 2001 SCC 66, refd to. [para. 22].

Lee v. Hopegain International Holdings Inc. et al., [1997] B.C.T.C. Uned. A26 (S.C.), refd to. [para. 24].

Butterfield v. Butterfield, [1993] B.C.T.C. Uned. E90 (S.C.), refd to. [para. 24].

Norman v. Soule et al., [1991] B.C.T.C. Uned. 652 (S.C.), refd to. [para. 25].

Stoffman v. Ontario Veterinary Association (1990), 46 O.A.C. 232 (Div. Ct.), refd to. [paras. 27, 74].

Benalcazar v. Tahtadjian, [1997] O.J. No. 4498 (C.J.), refd to. [para. 31].

McCarthy v. Barter (1895), 15 C.L.T. 198 (N.W.T.S.C.), refd to. [para. 33].

Griffin v. Summerside (City) et al. (2008), 281 Nfld. & P.E.I.R. 197; 863 A.P.R. 197; 2008 PESCAD 14, leave to appeal refused (2009), 403 N.R. 392; 309 Nfld. & P.E.I.R. 362; 962 APR 362 (S.C.C.), refd to. [paras. 34, 81].

Khanna v. Royal College of Dental Surgeons of Ontario et al., [1999] O.T.C. Uned. 508 (Sup. Ct.), refd to. [para. 35].

Khanna v. Royal College of Dental Surgeons of Ontario et al., [2000] O.A.C. Uned. 54 (C.A.), leave to appeal refused (2000), 261 N.R. 399; 141 O.A.C. 199 (S.C.C.), refd to. [paras. 37, 81].

Alevizos v. Manitoba Chiropractors Association et al. (2009), 239 Man.R.(2d) 207; 2009 MBQB 116, refd to. [para. 38].

Bainard et al. v. Toronto Police Services Board et al., [2002] O.T.C. 504 (Sup. Ct.), refd to. [para. 38].

Roach v. Long, [2000] O.T.C. 693 (Sup. Ct.), refd to. [para. 39].

Symington v. Halifax (Regional Municipality) et al. (2011), 312 N.S.R.(2d) 152; 987 A.P.R. 152; 2011 NSSC 474, refd to. [para. 39].

Gregory v. Portsmouth City Council, [2000] 1 A.C. 419; 256 N.R. 265; [2000] UKHL 3, refd to. [para. 41].

Gay v. Regional Health Authority 7 et al. (2014), 421 N.B.R.(2d) 1; 1094 A.P.R. 1; 2014 NBCA 10, refd to. [para. 52].

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 772 v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada et al. (2013), 404 N.B.R.(2d) 332; 1048 A.P.R. 332; 2013 NBCA 33, refd to. [para. 52].

Davidson et al. v. Craig Manufacturing Ltd. (2009), 345 N.B.R.(2d) 359; 889 A.P.R. 359; 2009 NBCA 42, refd to. [para. 53].

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, refd to. [para. 55].

London Drugs v. Kuehne & Nagel International Ltd. et al. - see/voir London Drugs Ltd. v. Brassart and Vanwinkel.

Swift Current (City) v. Saskatchewan Power Corp. et al. (2007), 293 Sask.R. 6; 397 W.A.C. 6; 2007 SKCA 27, refd to. [para. 87].

Drouillard v. Cogeco Cable Inc. et al. (2007), 223 O.A.C. 350; 2007 ONCA 322, refd to. [para. 87].

Fraser et al. v. Westminer Canada Ltd. et al. (2003), 215 N.S.R.(2d) 377; 675 A.P.R. 377; 2003 NSCA 76, refd to. [para. 87].

Georgian Glen Developments Ltd. v. Barrie (City), [2005] O.T.C. 770 (Sup. Ct.), refd to. [para. 87].

1515545 Ontario Ltd. et al. v. Niagara Falls (City) et al. (2006), 206 O.A.C. 219 (C.A.), refd to. [para. 87].

Authors and Works Noticed:

Casey, James T., The Regulation of Professions in Canada (1994) (Looseleaf), pp. 11-32, 11-36 [para. 27].

Clerk, John F., and Lindsell, The Law of Torts (20th Ed. 2010), para. 16-09 [para. 46].

Fleming, John G., The Law of Torts (9th Ed. 1998), pp. 673, 674 [para. 19]; 686 [para. 24].

Klar, Lewis N., Tort Law (5th Ed. 2012), pp. 68, 69 [para. 26].

Counsel:

Avocats:

John D. Townsend, Q.C., and Trisha E.M. Gallant LeBlanc, for the appellant;

G. Robert Basque, Q.C., for the respondent.

This appeal was heard on September 24, 2013, by Larlee, Robertson and Bell, JJ.A., of the New Brunswick Court of Appeal. The judgment of the Court of Appeal was delivered in both official languages on July 17, 2014, and included the following opinions:

Larlee, J.A. (Robertson, J.A., concurring) - see paragraphs 1 to 73;

Bell, J.A., dissenting - see paragraphs 74 to 93.