Irving Oil Ltd. v. Petro-Canada Inc. and Daly et al., (1988) 88 N.B.R.(2d) 78 (CA)

• Judge: Hoyt, Ayles and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 25, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 88 N.B.R.(2d) 78 (CA)

Irving Oil Ltd. v. Petro-Can. Inc. (1988), 88 N.B.R.(2d) 78 (CA);

    88 R.N.-B.(2e) 78; 224 A.P.R. 78

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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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Irving Oil Limited (applicant/appellant) v. City of Saint John, Petro-Canada Inc. and Thomas Daly (respondents/respondents)

(191/87/CA)

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

New Brunswick Court of Appeal

Hoyt, Ayles and Ryan, JJ.A.

April 29, 1988.

Summary:

Petro-Canada applied for permission to construct a gas bar and convenience store on their lands. Petro-Canada's lands were located in an area designated as "restricted industrial" by the city's municipal plan, while zoned for "light industrial use". The Planning Advisory Committee approved the proposal. Irving Oil, owner of land immediately across the street, objected and appealed pursuant to s. 86(2)(b) of the Community Planning Act.

The Provincial Planning Appeal Board dismissed the appeal. Irving applied to quash the Board's decision. Irving alleged that the zoning bylaw conflicted with the municipal plan, and that the plan should prevail.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, held that the proposed use was compatible with both the plan and the zoning bylaw and that there was no conflict between the plan and the bylaw. An appeal was dismissed by the New Brunswick Court of Appeal and leave to appeal to the Supreme Court of Canada was refused (See 82 N.B.R.(2d) 90; 208 A.P.R. 90; 82 N.R. 205).

Meanwhile, Irving applied for relief under s. 94.1 of the Act, claiming, inter alia, an order quashing that portion of the zoning bylaw allegedly in conflict with the municipal plan, and mandamus requiring the city to amend the zoning bylaw.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported 83 N.B.R.(2d) 416; 212 A.P.R. 416, dismissed Irving's application on the ground that the issues raised by Irving were determined in the previous litigation. Irving appealed.

The New Brunswick Court of Appeal, in the following decision, dismissed the appeal.

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

Estoppel - Topic 389

Estoppel by record - 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 - 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 had affirmed that the zoning bylaw did not conflict with the city's municipal plan - The New Brunswick Court of Appeal subsequently affirmed that Irving was estopped from raising the issue on the ground that the matters were dealt with in the prior proceedings.

Cases Noticed:

Oley and Moffatt v. Fredericton (City) (1984), 57 N.B.R.(2d) 361; 148 A.P.R. 361, refd to. [para. 10].

Angle v. Minister of National Revenue (1974), 2 N.R. 397, refd to. [para. 11].

Kew Property Planning and Management Limited v. Corporation of the Town of Burlington, [1980] 2 S.C.R. 598; 31 N.R. 541, refd to. [para. 11].

Counsel:

Levi E. Clain, Q.C., and Paul Smith, for the appellant;

Charles D. Whelly and Mary Ann Rogers, for Petro-Canada Inc. and Thomas Daly;

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

This appeal was heard before Hoyt, Ayles and Ryan, JJ.A., of the New Brunswick Court of Appeal on February 25, 1988. The decision of the Court of Appeal was delivered by Hoyt, J.A., on April 29, 1988.