Irving Oil Ltd. v. Petro-Canada Inc. and Daly et al., (1987) 83 N.B.R.(2d) 416 (TD)

• Judge: Jones, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: August 20, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 83 N.B.R.(2d) 416 (TD)

Irving Oil Ltd. v. Petro-Can. Inc. (1987), 83 N.B.R.(2d) 416 (TD);

    83 R.N.-B.(2e) 416; 212 A.P.R. 416

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[French language version follows English language version]

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Irving Oil Limited, a body corporate (appellant) v. The City of Saint John, Petro-Canada Inc., Thomas Daly and Daly's Stop 'n' Shop Limited (respondents)

(S/M/156/87)

Indexed As: Irving Oil Ltd. v. Petro-Canada Inc. and Daly et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Jones, J.

September 16, 1987.

Summary:

Petro-Canada applied for permission to construct a retail business on vacant land owned by the Company. The operations would involve the sale of petroleum products. Irving Oil opposed the application on the ground that the proposed use by Petro-Canada did not conform to the future land use plan for the area which was adopted by the city, and that the city failed to comply with s. 34(1) of the Community Planning Act in allowing Petro-Canada's application for a building permit. Petro-Canada argued that Irving was estopped from raising the issues because they were already determined in previous litigation between the parties. In the earlier litigation the New Brunswick Court of Appeal upheld a decision by the Court of Queen's Bench that the zoning bylaw did not conflict with the municipal land use plan.

The New Brunswick Court of Queen's Bench, in the following decision, dismissed Irving's application on the ground that the issues raised by Irving were determined in the previous litigation.

[See also 65 N.B.R.(2d) 363; 167 A.P.R. 363].

Estoppel - Topic 389

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Collateral issues decided in prior proceedings - Irving Oil opposed the granting of a building permit to Petro-Canada by the City of Saint John - Irving alleged that the city failed to comply with the Community Planning Act in granting the permit for a nonconforming use - In prior proceedings the New Brunswick Court of Appeal upheld a decision by the New Brunswick Court of Queen's Bench, that the zoning bylaw did not conflict with the city's municipal plan - The New Brunswick Court of Queen's Bench, held that Irving was estopped from raising the issue on the ground that the matters were dealt with in prior proceedings - The court stated that to determine a breach of the Community Planning Act the validity of the zoning bylaw in relation to the municipal plan would have to be considered, which was done in the prior litigation.

Cases Noticed:

Dexter Construction Company Limited v. City of Saint John (1981), 35 N.B.R.(2d) 217; 88 A.P.R. 217, refd to. [para. 20].

Oley and Moffatt v. Fredericton (City) (1984), 50 N.B.R.(2d) 157; 131 A.P.R. 157, consd. [para. 20].

McIlkenny v. Chief Constable of West Midlands Police et al., [1980] 2 All E.R. 227, refd to. [para. 26].

Hunter v. Chief Constable of West Midlands and another, [1981] 3 All E.R. 727, refd to. [para. 26].

Tebbutt v. Haynes, [1981] 2 All E.R. 238, refd to. [para. 27].

Oley and Moffatt v. Fredericton (City) (1984), 54 N.B.R.(2d) 418; 140 A.P.R. 418, affd. 57 N.B.R.(2d) 361; 148 A.P.R. 361, consd. [para. 29].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1970, c. C-12, sect. 23, sect. 27 [para. 9]; sect. 27.1 [paras. 9, 10]; sect. 34(1) [paras. 2, 9, 10].

Counsel:

Levi E. Clain, Q.C., for Irving Oil Limited;

John L. Nugent, for the City of Saint John;

Charles D. Whelly, for Petro-Canada Inc., Thomas Daly and Daly's Stop 'N' Shop Limited.

This application was heard on August 20, 1987, before Jones, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on September 16, 1987: