Gauthier v. Canada (Attorney General), (2000) 225 N.B.R.(2d) 211 (CA)

• Judge: Ryan, Turnbull and Drapeau, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 17, 2000
• Jurisdiction: New Brunswick
• Citations: (2000), 225 N.B.R.(2d) 211 (CA);2000 CanLII 20261 (NB CA);225 NBR (2d) 211;185 DLR (4th) 660;[2000] NBJ No 143 (QL);96 ACWS (3d) 152

Gauthier v. Can. (A.G.) (2000), 225 N.B.R.(2d) 211 (CA);

    225 R.N.-B.(2e) 211; 578 A.P.R. 211

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: [2000] N.B.R.(2d) TBEd. AP.024

Raymond Gauthier (plaintiff/appellant) v. Her Majesty the Queen in Right of the Attorney General of Canada (respondent/respondent)

(206/99/CA)

Indexed As: Gauthier v. Canada (Attorney General)

New Brunswick Court of Appeal

Ryan, Turnbull and Drapeau, JJ.A.

April 11, 2000.

Summary:

The plaintiff retired from the RCMP in 1988 with a pension of $20,685.48 annually. In 1996 the defendant advised the plaintiff that it had wrongly interpreted the Royal Canadian Mounted Police Superannuation Act, he had been overpaid since his retirement and his pension would be reduced to $16,929.48 annually. The plaintiff alleged that the defendant incorrectly interpreted the relevant sections of the Act. Alternatively, the plaintiff argued that he should not have to repay any amounts and should be entitled to the original amount in the future, having relied on the original calculations in making his decision to retire. He also claimed for a $3,250.70 bilingual bonus wrongly withheld by the defendant as a set-off. The plaintiff also sought general damages for negligent misrepresentation, mental anguish and distress and amended his statement of claim to seek specific performance of the 1988 contract. The defendant counterclaimed for recovery of the overpayment, but abandoned the counterclaim after the commencement of trial, agreeing also to pay the $3,250.47 that it had been withholding.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 216 N.B.R.(2d) 175; 552 A.P.R. 175, dismissed the plaintiff's action. The court denied the defendant costs because of its late abandonment of the counterclaim and because it withheld the bilingual bonus from the plaintiff. The plaintiff appealed.

The New Brunswick Court of Appeal allowed the appeal and awarded damages based on negligent misrepresentation.

Contracts - Topic 4106

Remedies for breach - Specific performance - When available - General - The plaintiff retired from the RCMP in 1988 with a pension of $20,685.48 annually - In 1996 the defendant advised the plaintiff that it had wrongly interpreted the Royal Canadian Mounted Police Superannuation Act, the plaintiff had been overpaid since his retirement and his pension would be reduced to $16,929.48 annually - The plaintiff sought, inter alia, damages for negligent misrepresentation and specific performance of the 1988 contract - The New Brunswick Court of Appeal held that the plaintiff had no right, contractual, statutory or otherwise, to a pension at the misstated level, but he was entitled to $78,386.60 damages for the pecuniary loss he suffered as a result of the respondent's negligent misrepresentation - The court rejected the plaintiff's claim for aggravated, exemplary or punitive damages.

Damage Awards - Topic 766

Torts - Fraud and misrepresentation - Negligent misrepresentation - [See Contracts - Topic 4106 ].

Damages - Topic 1301.5

Exemplary or punitive damages - Deceit or misrepresentation - [See Contracts - Topic 4106 ].

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - [See Contracts - Topic 4106 ].

Fraud and Misrepresentation - Topic 2508

Misrepresentation - General principles - Negligent misrepresentation - The plaintiff retired from the RCMP in 1988 with a pension of $20,685.48 annually - In 1996 the defendant advised the plaintiff that it had wrongly interpreted the Royal Canadian Mounted Police Superannuation Act, the plaintiff had been overpaid since his retirement and his pension would be reduced to $16,929.48 annually - The plaintiff sought, inter alia, general damages for negligent misrepresentation - The New Brunswick Court of Appeal held that the trial judge erred in placing the onus on the plaintiff to prove causation based on the negligent misrepresentation; the onus was on the defendant to disprove causation.

Cases Noticed:

Hedley Byrne & Co. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.), refd to. [para. 1].

Rowling v. Takaro Properties Ltd., [1988] 1 A.C. 473 (P.C.), refd to. [para. 12].

Sebastian v. Saskatchewan et al. (1978), 93 D.L.R.(3d) 154 (Sask. C.A.), refd to. [para. 12].

Caisse Populaire de Shippagan Ltée v. Brunswick Credit Union Federation Stabilization Board Ltd. et al. (1996), 177 N.B.R.(2d) 296; 449 A.P.R. 296 (T.D.), affd. (1996), 183 N.B.R.(2d) 183; 465 A.P.R. 183 (C.A.), refd to. [para. 12].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1; 99 D.L.R.(4th) 626, refd to. [para. 14].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 14].

Spinks v. Canada (1996), 195 N.R. 184; 134 D.L.R.(4th) 223 (F.C.A.), refd to. [para. 17].

Manuge v. Prudential Assurance Co. (1977), 27 N.S.R.(2d) 183; 41 A.P.R. 183; 81 D.L.R.(3d) 360 (T.D.), refd to. [para. 17].

Campbell v. Teachers' Retirement Fund (Alta.) (1993), 147 A.R. 185; 110 D.L.R.(4th) 400 (Q.B.), refd to. [para. 17].

Bratkowski v. Ontario Teachers' Pension Plan Board (1997), 36 O.T.C. 296 (Gen. Div.), refd to. [para. 17].

Redmond v. Densmore and French (1997), 153 Nfld. & P.E.I.R. 181; 475 A.P.R. 181 (Nfld. C.A.), refd to. [para. 19].

Banque Bruxelles Lambert SA v. Eagle Star Insurance Co. et al., [1995] 2 All E.R. 837 (C.A.), refd to. [para. 19].

Bank of Nova Scotia v. Dunphy Leasing Enterprises Ltd. (1991), 120 A.R. 241; 8 W.A.C. 241 (C.A.), affd. [1994] 1 S.C.R. 552; 166 N.R. 1; 149 A.R. 256; 63 W.A.C. 256, refd to. [para. 19].

Friolet v. Friolet (1998), 201 N.B.R.(2d) 118; 514 A.P.R. 118 (C.A.), refd to. [para. 20].

Young v. Fletcher and Lakeburn Lumber Retail Ltd. (1995), 161 N.B.R.(2d) 116; 414 A.P.R. 116 (C.A.), refd to. [para. 20].

Rainbow Industrial Caterers Ltd. et al. v. Canadian National Railway Co. et al., [1991] 3 S.C.R. 3; 126 N.R. 354; 3 B.C.A.C. 1; 7 W.A.C. 1; 8 C.C.L.T.(2d) 225; 59 B.C.L.R.(2d) 129; [1991] 6 W.W.R. 385, refd to. [para. 21].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1; 126 D.L.R.(4th) 129, refd to. [para 25].

Bishop v. Carleton Co-operative Ltd. (1996), 176 N.B.R.(2d) 206; 447 A.P.R. 206 (C.A.), refd to. [para. 25].

Counsel:

George P.L. Filliter, for the appellant;

Ray W. Dixon, Q.C., for the respondent.

This appeal was heard on February 17, 2000, by Ryan, Turnbull and Drapeau, JJ.A., of the New Brunswick Court of Appeal. Drapeau, J.A., delivered the following decision for the Court of Appeal on April 11, 2000.