Marion et al. v. Perley et al., (2015) 438 N.B.R.(2d) 201 (TD)

• Judge: Grant, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 19, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 438 N.B.R.(2d) 201 (TD);2015 NBQB 147

Marion v. Perley (2015), 438 N.B.R.(2d) 201 (TD);

    438 R.N.-B.(2e) 201; 1141 A.P.R. 201

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Temp. Cite: [2015] N.B.R.(2d) TBEd. JL.032

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JL.032

Peter Marion, Maritime Specialty Foods Inc. (plaintiffs) v. Ross Perley, Tina Martin, Kim Perley, Richard Moulton, Edwin Bernard, Leonard Nicholas (defendants)

(SJC-84-2015; 2015 NBQB 147; 2015 NBBR 147)

Indexed As: Marion et al. v. Perley et al.

Répertorié: Marion et al. v. Perley et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Grant, J.

May 19, 2015 and May 20, 2015.

Summary:

Résumé:

The plaintiffs sued the members of the Tobique First Nation Band Council, asserting that they breached a contract entered into between the plaintiffs and the Tobique First Nation which gave the plaintiffs an exclusive right to manage and operate the commercial fishery rights of the Tobique First Nation in the Grand Manan, Bay of Fundy area from January 1, 2013 until December 31, 2015. The plaintiffs moved to amend the statement of claim by adding the Tobique First Nation as a party to the action and to obtain an injunction to refrain the defendants, including the Tobique First Nation, from taking any steps to terminate the contract. The defendants raised a preliminary objection to the court's jurisdiction to deal with the matter, asserting that the Federal Court had exclusive jurisdiction.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the defendants' objection to the court's jurisdiction, amended the statement of claim by adding the Tobique First Nation as a defendant, and granted an injunction respecting the current contract between the parties.

Courts - Topic 4021.1

Federal Court of Canada - Jurisdiction - Federal Court - Decisions of federal boards, commissions or tribunals - The plaintiffs sued the members of the Tobique First Nation Band Council, asserting that they breached a contract entered into between the plaintiffs and the Tobique First Nation which gave the plaintiffs an exclusive right to manage and operate the commercial fishery rights of the Tobique First Nation in the Grand Manan, Bay of Fundy area from January 1, 2013 until December 31, 2015 - The plaintiffs moved to amend the statement of claim and to obtain injunctive relief - The defendants raised a preliminary objection to the court's jurisdiction to deal with the matter, asserting that the Federal Court had exclusive jurisdiction - The New Brunswick Court of Queen's Bench, Trial Division, accepted that the Band Council was empowered to act in relation to the fishery by virtue of the Fisheries Act and Commercial Fisheries Regulations, but that did not end the inquiry, as not all decisions of Indian Band Councils fell with the Federal Court's exclusive jurisdiction - The court considered the indicia of whether this matter was public or private and concluded that there was support for both - Considering all of the factors and the pleadings, which were framed in both breach of contract and tortious interference with a contract, the court concluded that in substance the litigation involved a matter of private law between the parties and that it was therefore not within the Federal Court's exclusive jurisdiction under s. 18 of the Federal Courts Act - See paragraphs 9 to 20.

Courts - Topic 4054

Federal Court of Canada - Jurisdiction - Federal Court - Indians, Inuit and Métis - [See Courts - Topic 4021.1 ].

Courts - Topic 5686

Provincial courts - Jurisdiction or powers - Respecting federal boards or tribunals - [See Courts - Topic 4021.1 ].

Courts - Topic 5687

Provincial courts - Jurisdiction or powers - Over Indians - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 2115

Nations, Tribes and Bands - Bands - Practice - Action against - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 6238

Government - Band councils (incl. chief and councillors) - Judicial review - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 6265

Government - What laws govern - Federal law - [See Courts - Topic 4021.1 ].

Indians, Inuit and Métis - Topic 6266

Government - What laws govern - Provincial laws of general application - [See Courts - Topic 4021.1 ].

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - The plaintiffs sued the members of the Tobique First Nation Band Council, asserting that they breached a contract entered into between the plaintiffs and the Tobique First Nation which gave the plaintiffs an exclusive right to manage and operate the commercial fishery rights of the Tobique First Nation in the Grand Manan, Bay of Fundy area from January 1, 2013 until December 31, 2015 - The plaintiffs moved for an injunction to refrain the defendants from taking any steps to terminate the contract - The New Brunswick Court of Queen's Bench, Trial Division, allowed the motion - The litigation raised a number of serious issues including whether there was a contract and, if so, whether it was breached - The court considered the ripple effect that would result if the status quo which had existed since January 1, 2013 was interrupted, the negative financial position of Tobique First Nation, and the likelihood that disturbing the status quo would cause severe damages to the plaintiffs' business, and concluded that the plaintiffs would suffer irreparable harm if an injunction was denied - With respect to the balance of convenience, the defendants asserted that the fishery was their best chance to turn their negative financial position around - The statement of claim alleged that there was a second contract to commence in September 2015 for a further three years, but the motion made no reference to that extension - In any case, the balance of convenience did not favour granting an injunction for that long of a period - Moreover, the strength of the plaintiffs' arguments on the issues of irreparable harm and the balance of convenience were considerably diminished respecting the alleged extension of the contract since they entered into it with full knowledge of the dispute and therefore had the opportunity to minimize their risk and/or any losses that might flow from it - The balance of convenience favoured the granting of an injunction for the remainder of the current contract - See paragraphs 23 to 32.

Injunctions - Topic 1609

Interlocutory or interim injunctions - General principles - Circumstances when injunction will issue - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1616

Interlocutory or interim injunctions - General principles - Arguable issues of law involved or serious question to be tried - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1779.9

Interlocutory or interim injunctions - Preservation of status quo - Pending outcome of action - [See Injunctions - Topic 1606 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See Injunctions - Topic 1606 ].

Injunctions - Topic 5955

Particular matters - Contracts - Enjoining threatened or anticipated breaches - [See Injunctions - Topic 1606 ].

Practice - Topic 662

Parties - Adding or substituting parties - Adding or substituting defendants - Considerations - The plaintiffs sued the members of the Tobique First Nation Band Council, asserting that they breached a contract entered into between the plaintiffs and the Tobique First Nation which gave the plaintiffs an exclusive right to manage and operate the commercial fishery rights of the Tobique First Nation in the Grand Manan, Bay of Fundy area from January 1, 2013 until December 31, 2015 - The plaintiffs moved to amend the statement of claim by adding the Tobique First Nation as a party to the action - The New Brunswick Court of Queen's Bench, Trial Division, stated that Queen's Bench Rule 27.10(1) permitted amendments to pleadings unless prejudice would result that could not be compensated for by costs or an adjournment - As no prejudice had been alleged, the court granted the motion - See paragraphs 21 and 22.

Practice - Topic 672

Parties - Adding or substituting parties - Circumstances when allowed - [See Practice - Topic 662 ].

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - [See Practice - Topic 662 ].

Cases Noticed:

Maloney v. Shubenacadie Indian Band et al. (2014), 447 F.T.R. 185; 2014 FC 129, refd to. [para. 10].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 23].

Counsel:

Avocats:

Timothy M. Hopkins, for the plaintiffs;

Harold L. Doherty, for the defendants.

This motion was heard on May 19, 2015, by Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following decision orally on May 19 and 20, 2015.