Levesque v. New Brunswick et al., (2010) 363 N.B.R.(2d) 6 (TD)

• Judge: LaVigne, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 02, 2009
• Jurisdiction: New Brunswick
• Citations: (2010), 363 N.B.R.(2d) 6 (TD);2010 NBQB 150

Levesque v. N.B. (2010), 363 N.B.R.(2d) 6 (TD);

    363 R.N.-B.(2e) 6; 936 A.P.R. 6

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2010] N.B.R.(2d) TBEd. MY.037

Renvoi temp.: [2010] N.B.R.(2d) TBEd. MY.037

Rodrigue Levesque and Suzanne Levesque (plaintiffs) v. The Province of New Brunswick and the New Brunswick Crop Insurance Commission, a body corporate (defendants)

(E/C/93/96; 2010 NBQB 150; 2010 NBBR 150)

Indexed As: Levesque v. New Brunswick et al.

Répertorié: Levesque v. New Brunswick et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Edmundston

LaVigne, J.

April 27, 2010.

Summary:

Résumé:

In 1994, the plaintiffs' potato fields became heavily infested with late blight, a fungal disease. The plaintiffs asserted that they were asked by an employee of the New Brunswick Crop Insurance Commission (Bernard) to take extraordinary measures including additional chemical spraying, roguing and other unusual cultural practices in order to salvage their crop and bring it to market and were told that their extra costs would be compensated. When the plaintiffs tendered their receipts for additional expenses to the Commission they were denied reimbursement. The plaintiffs exhausted the review and arbitration process provided for in the Crop Insurance Act. In 1996, the plaintiffs brought an action, claiming the sum of $69,756.98, plus interest, for breach of an independent contract between the parties. In the alternative, the plaintiffs claimed the same amount for restitution on the basis of quantum meruit and in the further alternative they claimed the same amount on the basis of negligent misrepresentation. The defendants brought a motion for a non-suit.

The New Brunswick Court of Queen's Bench, Trial Division, granted the motion.

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - [See Crown - Topic 4531 ].

Crown - Topic 4432

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Notice of action - In 1994, the plaintiffs' potato fields became heavily infested with late blight, a fungal disease - The plaintiffs asserted that they were asked by an employee of the New Brunswick Crop Insurance Commission (Bernard) to take extraordinary measures including additional chemical spraying, roguing and other unusual cultural practices in order to salvage their crop and bring it to market and were told that their extra costs would be compensated - When the plaintiffs tendered their receipts for additional expenses to the Commission they were denied reimbursement - The plaintiffs exhausted the review and arbitration process provided for in the Crop Insurance Act - In 1996, the plaintiffs brought an action against the Commission and the Province of New Brunswick, asserting "negligent misrepresentation on the Hedley Byrne principle" - In 2006, the plaintiffs amended their statement of claim, adding a claim for "breach of contract" and a claim for "restitution, based on quantum meruit" - The defendants brought a motion for a non-suit, asserting that the plaintiffs failed to comply with the notice requirements of s. 15 of the Proceedings Against the Crown Act - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion - Section 15 had to be strictly construed - The statute had to be complied with before the process could validly issue - If the Commission was a Crown corporation the action against it would be a nullity as the plaintiffs had not complied with the strict notice requirements of the Act which would require the plaintiffs to serve written notice to the Commission directly - The language of s. 15 left no doubt, when an action was to be brought against a Crown corporation, the notice was to be served on the corporation, not on the Attorney General - Whether the Commission had actual notice or not was irrelevant - The Act has to be complied with - The claims for breach of contract and restitution against the Province would also be a nullity as no written notice was given to the Province of these causes of action as specifically required by s. 15 of the Act - See paragraphs 68 to 83.

Crown - Topic 4531

Actions by and against Crown in right of a province - Capacity of Crown to be sued - General - In 1994, the plaintiffs' potato fields became heavily infested with late blight, a fungal disease - The plaintiffs asserted that they were asked by an employee of the New Brunswick Crop Insurance Commission (Bernard) to take extraordinary measures including additional chemical spraying, roguing and other unusual cultural practices in order to salvage their crop and bring it to market and were told that their extra costs would be compensated - When the plaintiffs tendered their receipts for additional expenses to the Commission they were denied reimbursement - The plaintiffs exhausted the review and arbitration process provided for in the Crop Insurance Act - In 1996, the plaintiffs brought an action against the Commission and the Province of New Brunswick, asserting "negligent misrepresentation on the Hedley Byrne principle" - The defendants brought a motion for a non-suit, asserting that the Crown could not be sued for negligent misrepresentation - The New Brunswick Court of Queen's Bench, Trial Division, granted the motion - For the sake of the motion, the court found that the plaintiffs had established a prima facie case of negligent misrepresentation - However, an action in negligent misrepresentation could not be maintained against the provincial Crown in New Brunswick as it did not fall within those classes of tort enumerated in the Proceedings Against the Crown Act - See paragraphs 84 to 101.

Crown - Topic 4566

Actions by and against Crown in right of a province - Capacity of agents of Crown to be sued - Companies controlled by Crown - In 1994, the plaintiffs' potato fields became heavily infested with late blight, a fungal disease - The plaintiffs asserted that they were asked by an employee of the New Brunswick Crop Insurance Commission (Bernard) to take extraordinary measures including additional chemical spraying, roguing and other unusual cultural practices in order to salvage their crop and bring it to market and were told that their extra costs would be compensated - When the plaintiffs tendered their receipts for additional expenses to the Commission they were denied reimbursement - The plaintiffs exhausted the review and arbitration process provided for in the Crop Insurance Act - The plaintiffs brought an action, claiming the sum of $69,756.98, plus interest, for breach of an independent contract between the parties - In the alternative, the plaintiffs claimed the same amount for restitution on the basis of quantum meruit and in the further alternative they claimed the same amount on the basis of negligent misrepresentation - The defendants brought a motion for a non-suit - At issue was, inter alia, whether the Commission was a Crown corporation for the purposes of s. 2(2)(d) of the Proceedings Against the Crown Act - The New Brunswick Court of Queen's Bench, Trial Division, held that Commission was not a Crown corporation for purposes of the Act - The Commission was responsible to the Minister - Therefore it was not necessary to add the Commission as a named defendant in the action in order for the acts of its employees to bind the Minister and therefore the Province - It followed that s. 2(2)(d) of the Act would not prevent an action against the Province - See paragraphs 38 to 46.

Limitation of Actions - Topic 2021

Actions in contract - Actions for breach of contract - General - In 1994, the plaintiffs' potato fields became heavily infested with late blight, a fungal disease - The plaintiffs asserted that they were asked by an employee of the New Brunswick Crop Insurance Commission (Bernard) to take extraordinary measures including additional chemical spraying, roguing and other unusual cultural practices in order to salvage their crop and bring it to market and were told that their extra costs would be compensated - When the plaintiffs tendered their receipts for additional expenses to the Commission they were denied reimbursement - The plaintiffs exhausted the review and arbitration process provided for in the Crop Insurance Act - In 1996, the plaintiffs brought an action, asserting "negligent misrepresentation on the Hedley Byrne principle" - In 2006, the plaintiffs amended their statement of claim, adding a claim for "breach of contract" and a claim for "restitution, based on quantum meruit" - The defendants brought a motion for a non-suit - At issue was, inter alia, whether s. 9 of the Limitation of Actions Act prevented the plaintiffs from bringing an action against the Province of New Brunswick, for breach of contract or restitution based on quantum meruit, 12 years after the cause of action arose - The New Brunswick Court of Queen's Bench, Trial Division, held that the Act enacted that an action in contract or restitution was to be commenced within six years after the cause of action arose - There were no special circumstances justifying the recognition of an exception to the general rule - The Act was a bar to bringing the 2006 claims - See paragraphs 47 to 64.

Limitation of Actions - Topic 2021

Actions in contract - Actions for breach of contract - General - In 1994, the plaintiffs' potato fields became heavily infested with late blight, a fungal disease - The plaintiffs asserted that they were asked by an employee of the New Brunswick Crop Insurance Commission (Bernard) to take extraordinary measures including additional chemical spraying, roguing and other unusual cultural practices in order to salvage their crop and bring it to market and were told that their extra costs would be compensated - When the plaintiffs tendered their receipts for additional expenses to the Commission they were denied reimbursement - The plaintiffs exhausted the review and arbitration process provided for in the Crop Insurance Act - In 1996, the plaintiffs brought an action, asserting "negligent misrepresentation on the Hedley Byrne principle" - In 2006, the plaintiffs amended their statement of claim, adding a claim for "breach of contract" and a claim for "restitution, based on quantum meruit" - The defendants brought a motion for a non-suit - At issue was, inter alia, whether s. 9 of the Limitation of Actions Act prevented the plaintiffs from bringing an action against the Commission, for breach of contract, restitution based on quantum meruit and negligent misrepresentation, 12 years after the cause of action arose - The New Brunswick Court of Queen's Bench, Trial Division, held that had it found that the Commission was a Crown corporation, it would also have concluded that the actions in contract and restitution were barred by the Act where they were not brought within six years of the cause of action arising - With respect to the action for negligent representation, it would not be barred, due to special circumstances - See paragraphs 65 to 67.

Practice - Topic 5390.1

Dismissal of action - Application or motion for dismissal - Nonsuit - At close of plaintiff's case - When available (incl. grounds) - [See Crown - Topic 4432 , Crown - Topic 4531 , Crown - Topic 4566 and both Limitation of Actions - Topic 2021 ].

Couronne - Topic 4427

Actions par et contre la Couronne du chef d'une province - Lois sur les procédures contre la Couronne - Actions auxquelles la loi s'applique - [Voir Crown - Topic 4427 ].

Couronne - Cote 4531

Actions par et contre la Couronne du chef d'une province - Qualité de la Couronne à être poursuivie - Généralités - [Voir Crown - Topic 4531 ].

Couronne - Cote 4432

Actions par et contre la Couronne du chef d'une province - Lois sur les procédures contre la Couronne - Avis de poursuite - [Voir Crown - Topic 4432 ].

Couronne - Topic 4566

Actions par et contre la Couronne du chef d'une province - Qualité des mandataires de la Couronne à être poursuivis - Compagnies contrôlées par la Couronne - [Voir Crown - Topic 4566 ].

Prescription - Cote 2021

Actions contractuelles - Actions pour rupture contractuelle - Généralités - [Voir Limitation of Actions - Topic 2021 ].

Procédure - Cote 5390.1

Rejet de l'action - Requête ou motion en reject - Rejet de l'action - À la clôture de la présentation du demandeur - Conditions d'ouverture (y compris motifs) - [Voir Practice - Topic 5390.1 ].

Cases Noticed:

FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. et al. (2007), 85 O.R.(3d) 561; 2007 ONCA 425, refd to. [para. 17].

Chauffage Moderne (1986) Ltée v. New Brunswick (Minister of Supply and Services), 1992 CanLII 2660 (N.B.T.D.), refd to. [para. 17].

R. v. Solomon (J.N.) (2006), 299 N.B.R.(2d) 327; 778 A.P.R. 327; 2006 NBCA 52, refd to. [para. 17].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 47].

Co-op Atlantic Ltd. et al. v. Brunswick Bulk Transport Ltd. (1996), 182 N.B.R.(2d) 48; 463 A.P.R. 48 (C.A.), affing. (1995), 171 N.B.R.(2d) 156; 437 A.P.R. 156 (T.D.), dist. [para. 56].

051766 N.B. Ltd. v. Wilbur et al. (2005), 292 N.B.R.(2d) 115; 761 A.P.R. 115; 2005 NBQB 443, dist. [para. 58].

Dabrowski Estate v. York Structural Steel Ltd. et al. (1995), 161 N.B.R.(2d) 305; 414 A.P.R. 305; 34 C.P.C.(3d) 157 (C.A.), refd to. [para. 60].

Weldon v. Neal (1887), 19 Q.B.D. 394; 56 L.J.Q.B. 621, refd to. [para. 61].

McGraw v. New Brunswick (Minister of Transportation) (2005), 292 N.B.R.(2d) 195; 761 A.P.R. 195; 2005 NBQB 475, refd to. [para. 76].

Mattick Estate v. Ontario (Minister of Health) et al. (2001), 139 O.A.C. 149; 52 O.R.(3d) 221 (C.A.), dist. [para. 77].

Kirkpatrick v. McIntosh and New Brunswick (1989), 103 N.B.R.(2d) 248; 259 A.P.R. 248; 42 C.P.C.(2d) 151 (T.D.), refd to. [para. 79].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 85].

Allain et al. v. New Brunswick et al., [2004] N.B.R.(2d) (Supp.) No. 51; 2004 NBQB 311, refd to. [para. 86].

Daigle and Rideout v. New Brunswick (1979), 25 N.B.R.(2d) 261; 51 A.P.R. 261 (Q.B.), refd to. [para. 91].

Jeux Maritimes Inc. v. Commission des loteries du Nouveau-Brunswick (1997), 186 N.B.R.(2d) 321; 476 A.P.R. 321 (T.D.), refd to. [para. 92].

McCoy (E.E.) Co. v. New Brunswick (1979), 25 N.B.R.(2d) 255; 51 A.P.R. 255 (Q.B.), refd to. [para. 92].

Crawford et al. v. Agricultural Development Board (N.B.) et al. (1993), 136 N.B.R.(2d) 70; 347 A.P.R. 70 (T.D.), refd to. [para. 92].

Gauthier v. Canada (Attorney General) (2000), 225 N.B.R.(2d) 211; 578 A.P.R. 211 (C.A.), dist. [para. 93].

Statutes Noticed:

Proceedings Against the Crown Act, R.S.N.B. 1973, c. P-18, sect. 2(2)(d) [para. 38 et seq.]; sect. 15 [para. 68 et seq.].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), pp. 182 to 189 [para. 21].

Counsel:

Avocats:

Lucie Laboissonnière, for the plaintiffs;

Bernard Valcourt, Q.C., for the defendants.

This motion was heard between October 26 and December 2, 2009, by LaVigne, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Edmundston, who delivered the following decision on April 27, 2010.