Jeux Maritimes Inc. v. Commission des loteries (N.-B.), (1999) 212 N.B.R.(2d) 341 (CA)

• Judge: Rice, Drapeau and Larlee, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: September 24, 1998
• Jurisdiction: New Brunswick
• Citations: (1999), 212 N.B.R.(2d) 341 (CA)

Jeux Mar. v. Lotteries Comm. (1999), 212 N.B.R.(2d) 341 (CA);

    212 R.N.-B.(2e) 341; 541 A.P.R. 341

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [1999] N.B.R.(2d) TBEd. JN.016

Jeux Maritimes Inc., a duly incorporated corporation (appellant/plaintiff) v. The Lotteries Commission of New Brunswick, as represented by Her Majesty the Queen in right of the Province of New Brunswick (respondent/defendant)

(81/97/CA)

Indexed As: Jeux Maritimes Inc. v. Commission des loteries (N.-B.)

New Brunswick Court of Appeal

Rice, Drapeau and Larlee, JJ.A.

May 27, 1999.

Summary:

The New Brunswick Lotteries Com­mission invited proposals from wholesalers for exclu­sive distribution rights for break­open tickets. Jeux Maritimes responded and received a Request for Proposal. Jeux Mari­times was awarded the contract. Jeux Mari­times subse­quently sued, alleging that the Commission breached the contract by al­lowing the Atlan­tic Lottery Corporation to sell breakopen tickets and by failing to stop illegal ticket sales. Alternatively, Jeux Mari­times alleged that during negotiations the Commission misrepresented that the contract was for exclusive distribution rights and that it would stop illegal ticket sales.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 186 N.B.R.(2d) 321; 476 A.P.R. 321, dismissed the action. Jeux Maritimes ap­pealed.

The New Brunswick Court of Appeal, Rice J.A., dissenting, allowed the appeal.

Editor's Note: For a related case, see 150 N.B.R.(2d) 46; 385 A.P.R. 46.

Contracts - Topic 6

General principles - What constitutes the contract - The Lotteries Commission (N.B.) invited proposals from wholesalers for exclusive distribution rights for break­open tickets - Jeux Maritimes received a Request for Proposal, which referred to "exclusive distribution rights" - The Com­mission selected Jeux Maritimes' proposal - A letter of agreement provided that the contract was for distribution rights to certain non-profit community groups - Jeux Maritimes alleged that it had exclusive distribution rights, relying on, inter alia, the Request for Proposal - The trial judge held that the Request for Proposal was an invitation to submit offers and not an offer to enter into a contract, and could not be relied on as being a statement of the con­tractual obligations of the parties - The New Brunswick Court of Appeal held that the judge had erred - The master agree­ment was entered into when the Commis­sion accepted Jeux Maritimes' offer - The agreement awarded exclusive distribution rights for all breakopen tickets everywhere in New Brunswick - See paragraphs 19 to 34.

Contracts - Topic 1205

Formation of contract - Offer - What constitutes an offer - [See Contracts - Topic 6 ].

Contracts - Topic 1267

Formation of contract - Tender calls - Acceptance of - [See Contracts - Topic 6 ].

Contracts - Topic 3523

Performance or breach - Breach - What constitutes a breach - The Lotteries Com­mission (N.B.) invited proposals from wholesalers for exclusive distribution rights for breakopen tickets - Jeux Maritimes received a Request for Proposal, which referred to "exclusive distribution rights" - The Commission selected Jeux Maritimes' proposal - A letter of agreement provided that the contract was for distribution rights to certain non-profit community groups - The Commission authorized the Atlantic Lottery Corporation to sell breakopen tickets on the retail and commercial market - Jeux Maritimes argued that the Commis­sion had breached the contract by violating its exclusive rights - The New Brunswick Court of Appeal accepted the argument and awarded Jeux Maritimes $144,000 for loss of profits - See paragraphs 9 to 40.

Contracts - Topic 7406

Interpretation - General principles - Inter­pretation by context - The Lotteries Com­mission (N.B.) invited proposals from wholesalers for exclusive distribution rights for breakopen tickets - Jeux Maritimes responded and received a Request for Proposal which referred to exclusive dis­tribution rights - Jeux Maritimes was awarded the contract - The contract pro­vided that the agreement was for the right to distribute tickets to non-profit com­munity groups, licensed by the Commis­sion - Jeux Maritimes argued that it had exclusive distribution rights relying on the Request for Proposal - The issue was to determine what agreement the parties entered into - The trial judge's analysis of the relationship between the parties was based on Part VII of the Criminal Code (gaming and betting) notwithstanding the fact that the Code had not been pleaded - The New Brunswick Court of Appeal held that the judge had erred in referring to the Criminal Code - The relationship between the parties must be defined with reference to the agreement they entered into and based on the pleadings - See paragraphs 19 to 23.

Courts - Topic 587

Judges - Duties - To decide according to evidence - [See Contracts - Topic 7406 ].

Damage Awards - Topic 1005

Contracts - General - Breach of contract - Loss of profits - [See Contracts - Topic 3523 ].

Damages - Topic 5713

Contracts - Breach of contract - Loss of profits - The Lotteries Commission (N.B.) awarded Jeux Maritimes a contract for exclusive distribution of breakopen tickets in New Brunswick - Subsequently, the Commission authorized the Atlantic Lot­tery Corporation to sell breakopen tickets on the retail and commercial markets - Jeux Maritimes sued the Lotteries Commis­sion (N.B.) for breach of contract - Jeux Maritimes argued that its loss of capital should constitute the measure of its dam­ages if the court assessed damages below what it claimed - The New Brunswick Court of Appeal rejected the argument - There were exceptional circumstances where a damage award limited to loss of profit would not be fair to the injured party and where the court could base the amount awarded in compensation on the victim's loss of capital - This was not such a case - See paragraph 40.

Cases Noticed:

Gallant v. Thibodeau (1998), 206 N.B.R.(2d) 336; 526 A.P.R. 336 (C.A.), refd to. [para. 14].

Friolet v. Friolet (1998), 201 N.B.R.(2d) 118; 514 A.P.R. 118 (C.A.), refd to. [para. 14].

Parlee v. McFarlane (1999), 210 N.B.R.(2d) 284; 536 A.P.R. 284 (C.A.), refd to. [para. 21].

Brunswick Data Inc. v. New Brunswick (1999), 209 N.B.R.(2d) 196; 535 A.P.R. 196 (C.A.), refd to. [para. 21].

Diversified Engineering Equipment Ltd. v. Nova Scotia (Attorney General) (1980), 41 N.S.R.(2d) 513; 76 A.P.R. 513 (T.D.), dist. [para. 24].

Sail Labrador Ltd. v. Navimar Corp. et al., [1999] 1 S.C.R. 265; 235 N.R. 201, refd to. [para. 24].

Eli Lilly & Co. et al. v. Novopharm Ltd. et al., [1998] 2 S.C.R. 129; 227 N.R. 201, refd to. [para. 25].

Caisse populaire de Grand-Sault ltée v. Crédit Bombardier ltée/Bombardier Credit Ltd. et autre (1998), 199 N.B.R.(2d) 350; 510 A.P.R. 350 (C.A.), refd to. [para. 27].

Controls & Equipment Ltd. v. Ramco Contractors Ltd. et al. (1999), 209 N.B.R.(2d) 1; 535 A.P.R. 1 (C.A.), refd to. [para. 27].

Mabey v. Mansonville Plastics Ltd., Potton Chemicals Ltd., Russell and Korman (1978), 24 N.B.R.(2d) 689; 48 A.P.R. 689 (Q.B.), refd to. [para. 33].

Fraser-Reid and Fraser-Reid v. Droumtse­kas, Droumtsekas (Ken) Construction Ltd. and Droumtsekas (Ken) Investments Central Ltd., [1980] 1 S.C.R. 720; 29 N.R. 424, refd to. [para. 33].

Beshara v. Dysart (1998), 207 N.B.R.(2d) 14; 529 A.P.R. 14 (C.A.), refd to. [para. 35].

Thomas Equipment Ltd. v. Sperry Rand Canada Ltd. and Sperry Rand Corp. (1982), 40 N.B.R.(2d) 271; 105 A.P.R. 271 (C.A.), refd to. [para. 38].

Michaels et al. c. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99; [1975] 5 W.W.R. 575; 75 C.L.L.C. 14,280; 57 D.L.R.(3d) 386, refd to. [para. 38].

Mr. Convenience Ltd. v. 040502 N.B. Ltd. (1993), 137 N.B.R.(2d) 305; 351 A.P.R. 305 (C.A.), refd to. [para. 38].

Penvidic Contracting Co. v. International Nickel Co. of Canada Ltd., [1976] 1 S.C.R. 267; 4 N.R. 1, refd to. [para. 38].

Wood v. Grand Valley Railway Co. et al. (1915), 51 S.C.R. 283, refd to. [para. 38].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, refd to. [para. 38].

Sunshine Vacation Villas Ltd. v. Governor & Co. of Adventurers of England Trad­ing into Hudson's Bay (1984), 58 B.C.L.R. 33 (C.A.), refd to. [para. 40].

Harvey v. Perry, [1953] 2 D.L.R. 465 (S.C.C.), refd to. [para. 60].

Manderville et al. v. Goodfellow's Truck­ing Ltd. (1999), 210 N.B.R.(2d) 145; 536 A.P.R. 145 (C.A.), refd to. [para. 60].

Dorval v. Bouvier, [1968] S.C.R. 288, refd to. [para. 67].

Schreiber Brothers Ltd. v. Currie Products Ltd. and Gulf Oil Canada Ltd., [1980] 2 S.C.R. 78; 31 N.R. 335, refd to. [para. 67].

Metivier v. Cadorette and Gourde, [1977] 1 S.C.R. 371; 8 N.R. 129, refd to. [para. 67].

Latour v. Grenier, [1945] S.C.R. 749, refd to. [para. 67].

Workmen's Compensation Board (N.B.) v. Greer, [1975] 1 S.C.R. 347; 1 N.R. 99; 7 N.B.R.(2d) 171, refd to. [para. 67].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 67].

Counsel:

André G. Richard and Guy A. Belliveau, for the appellant;

Richard Duke, for the respondent.

This appeal was heard on September 24, 1998 by Rice, Drapeau and Larlee, JJ.A., of the New Brunswick Court of Appeal. On May 27, 1999, the decision of the Court of Appeal was delivered and the following reasons filed:

Drapeau, J.A. (Larlee, J.A., concurring) - see paragraphs 1 to 41;

Rice, J.A., dissenting - see paragraphs 42 to 68.