Marion v. Perley, (2015) 443 N.B.R.(2d) 178 (TD)

Judge:Grant, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:November 02, 2015
Jurisdiction:New Brunswick
Citations:(2015), 443 N.B.R.(2d) 178 (TD);2015 NBQB 220
 
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Marion v. Perley (2015), 443 N.B.R.(2d) 178 (TD);

    443 R.N.-B.(2e) 178; 1159 A.P.R. 178

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Temp. Cite: [2015] N.B.R.(2d) TBEd. NO.023

Renvoi temp.: [2015] N.B.R.(2d) TBEd. NO.023

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 220; 2015 NBBR 220)

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.

November 5, 2015.

Summary:

Résumé:

The plaintiffs sued the members of the Tobique First Nation Band Council, seeking, inter alia, a declaration that 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 current contract), was in full force and effect; and a declaration that a new contract granting the plaintiffs exclusive management and operation rights, effective September 15, 2015 (the new contract), was valid and binding on the Tobique First Nation and the defendants. 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 contracts. 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, in a decision reported at 438 N.B.R.(2d) 201; 1141 A.P.R. 201, 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 interim injunction respecting the current contract between the parties. The plaintiffs moved for summary judgment or, alternatively, injunctive relief respecting the new contract. The defendants moved for summary judgment and the termination of the interim injunction.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the plaintiffs' motion and ordered the plaintiffs to pay $2,000 in costs. The court refused to hear the defendants' motion to terminate the injunction. The court adjourned the defendants' motion for summary judgment.

Injunctions - Topic 1610

Interlocutory or interim injunctions - General principles - Circumstances when injunction will not be granted - The plaintiffs sued the members of the Tobique First Nation Band Council, seeking, inter alia, a declaration that 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, was in full force and effect; and a declaration that a new contract granting the plaintiffs exclusive management and operation rights, effective September 15, 2015, was valid and binding on the defendants - The plaintiffs moved for summary judgment or, alternatively, an interim injunction respecting the new contract - The New Brunswick Court of Queen's Bench, Trial Division, denied summary judgment - The validity of many of the defendants' allegations of wrongdoing and negligent performance of the contract depended on findings of fact based on the credibility of witnesses in a fact scenario which was still evolving - The proper forum for resolving conflicting evidence was a trial - The issue of whether there was a valid new contract was a material fact which remained genuinely in dispute - Given the evidence, or the lack thereof, of the existence of a new contract, the court also denied injunctive relief - The court ordered the plaintiffs to pay $2,000 in costs to the Tobique First Nation, where the individual plaintiff attempted, in a duplicitous manner, to promote his own interests and undermine the ability of the new Band Council to conduct its business without outside interference - See paragraphs 4 to 21.

Injunctions - Topic 1861

Interlocutory or interim injunctions - Revocation of interim injunction - General - The plaintiffs sued the members of the Tobique First Nation Band Council, seeking, inter alia, a declaration that 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, was in full force and effect; and a declaration that a new contract granting the plaintiffs exclusive management and operation rights, effective September 15, 2015, was valid and binding on the defendants - The plaintiffs obtained an interim injunction respecting the first contract - The injunction ordered the defendants to pay costs of $1,000 forthwith - The defendants moved to discontinue the injunction - The New Brunswick Court of Queen's Bench, Trial Division, refused to hear the defendants' motion, where the Chief of the Tobique First Nation had violated the terms of the injunction and all of the defendants had failed to comply with the order to pay costs forthwith - See paragraphs 22 to 25.

Injunctions - Topic 1881

Interlocutory or interim injunctions - Evidence and proof - General - [See Injunctions - Topic 1610 ].

Injunctions - Topic 5951

Particular matters - Contracts - General - [See Injunctions - Topic 1610 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - [See Injunctions - Topic 1610 ].

Practice - Topic 5708

Judgments and orders - Summary judgment - Bar to application - Existence of issue to be tried - [See Injunctions - Topic 1610 ].

Practice - Topic 5725

Judgments and orders - Summary judgment - Costs - [See Injunctions - Topic 1610 ].

Practice - Topic 7103

Costs - Special orders - Conduct by party or counsel - [See Injunctions - Topic 1610 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 10].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, appld. [para. 11].

Counsel:

Avocats:

Timothy M. Hopkins, for the plaintiffs;

Harold L. Doherty, for the defendants.

These motions were heard on November 2, 2015, by Grant, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following oral judgment on November 5, 2015.

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