Modern Constr. v. Enbridge Gas,

• Jurisdiction: New Brunswick
• Judge: Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.
• Neutral Citation: 2003 NBCA 78
• Citation: (2003), 264 N.B.R.(2d) 145 (CA),2003 NBCA 78,264 NBR (2d) 145,[2003] NBJ No 396 (QL),(2003), 264 NBR(2d) 145 (CA),264 N.B.R.(2d) 145,[2003] N.B.J. No 396 (QL),264 NBR(2d) 145
• Date: 11 September 2003
• Court: Court of Appeal (New Brunswick)

Modern Constr. v. Enbridge Gas (2003), 264 N.B.R.(2d) 145 (CA);

    264 R.N.-B.(2e) 145; 691 A.P.R. 145

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: [2003] N.B.R.(2d) TBEd. NO.018

Enbridge Gas New Brunswick Inc., a body corporate (defendant/appellant) v. Modern Construction (1983) Limited, a body corporate (plaintiff/respondent) and Robinson Construction Company Limited, a body corporate and MRM Technical Group Inc., a body corporate (defendants/respondents)

(62/03/CA; 2003 NBCA 78)

Indexed As: Modern Construction (1983) Ltd. v. Enbridge Gas New Brunswick Inc. et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A.

September 11, 2003.

Summary:

Enbridge Gas contracted with MRM Tech­nical for the construction of the gas pipeline under highways in Moncton and Dieppe. MRM sub-contracted the work to Robinson Construction, which, in turn, hired Modern Construction to provide the necessary asphalt and paving. Modern sued Enbridge, MRM and Robinson, alleging that it had not been fully paid for its services and materials. Modern applied to amend its statement of claim.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the amendment. Enbridge appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - The New Brunswick Court of Appeal stated that "amendments to pleadings that comply with the rules of pleadings found in Rule 27 [of the Rules of Court] should be only very rarely re­fused. That approach is shaped by the direction articulated in Rule 1.03, namely that the rules are to be liberally construed to secure the just, least expensive and most expeditious determination of every pro­ceeding on the merits. As well, there is ample authority for the proposition that any decision to allow an amendment to a pleading, being discretionary in nature, calls for the application of a standard of appellate review impregnated with great deference for the judgment exercised in first instance." - See paragraph 15.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - The New Brunswick Court of Appeal stated that "an amendment to a pleading designed to bring into the mix a clearly irrelevant fact or inapplicable statutory provision must be denied. ... While there is no specific New Brunswick rule of court on point, that proposition flows logically, inter alia, from the following: (1) Rule 27.06(1), which requires that every plead­ing contain a concise statement of the material facts relied upon by the party pleading for his or her claim or defence; (2) Rule 23.01(1)(b) that empowers the court to strike out any pleading that does not disclose a reasonable cause of action or defence; (3) Rule 27.09, which permits the striking out of any pleading, or other docu­ment, or any part thereof on the ground that it is frivolous or may prejudice, em­barrass or delay the fair trial of the action; and (4) Rule 27.06(14) that obligates a party to plead the specific section that he or she is relying upon when the cause of action or defence is founded upon an Act. It would make no sense to allow an amendment that would then be struck out pursuant to any of those rules." - See paragraph 16.

Cases Noticed:

Braid Estate v. Whistler River Adventures Ltd., [2000] B.C.J. No. 2442 (S.C.), refd to. [para. 16].

Western Surety Co. v. National Bank of Canada (2001), 237 N.B.R.(2d) 346; 612 A.P.R. 346 (C.A.), leave to appeal de­nied (2001), 283 N.R. 391; 250 N.B.R.(2d) 202; 650 A.P.R. 202 (S.C.C.), refd to. [para. 17].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 20].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Levesque v. Picard and Minister of Justice (1984), 53 N.B.R.(2d) 169; 138 A.P.R. 169 (T.D.), varied (1985), 66 N.B.R.(2d) 87; 169 A.P.R. 87 (C.A.), refd to. [para. 21].

RGL Properties Inc. et al. v. Co-operators Development Corp. (1992), 129 N.B.R.(2d) 238; 325 A.P.R. 238 (T.D.), refd to. [para. 21].

Petrovics v. Canada et al. (1999), 209 N.B.R.(2d) 237; 535 A.P.R. 237 (Q.B.), leave to appeal denied (1999), 210 N.B.R.(2d) 109; 536 A.P.R. 109 (C.A.), refd to. [para. 21].

Parlee v. McFarlane (1999), 210 N.B.R.(2d) 284; 536 A.P.R. 284 (C.A.), refd to. [para. 22].

ADI Ltd. v. 052987 N.B. Inc. et al. (2000), 232 N.B.R.(2d) 47; 598 A.P.R. 47 (C.A.), leave to appeal denied (2001), 275 N.R. 391; 243 N.B.R.(2d) 212; 631 A.P.R. 212 (S.C.C.), refd to. [para. 22].

Canadian Imperial Bank of Commerce v. Lush et al. (2002), 251 N.B.R.(2d) 291; 654 A.P.R. 291 (C.A.), refd to. [para. 22].

Statutes Noticed:

Rules of Court (N.B.), rule 23.01(1)(b), rule 27.06(1), rule 27.06(14), rule 27.09 [para. 16].

Authors and Works Noticed:

Holmested and Watson, Ontario Civil Procedure (Looseleaf Ed.), pp. 25-10, 25-11 [para. 22].

Counsel:

David Duncan Young, for the appellant;

Randy A. Roth, for the respondent, Mod­ern Construction (1983) Ltd.;

No one appeared for the respondent, Rob­inson Construction Co. Ltd.;

Deno P. Pappas, Q.C., for the respondent, MRM Technical Group Inc.

This appeal was heard and decided on September 11, 2003, by Drapeau, C.J.N.B., Turnbull and Larlee, JJ.A., of the New Brunswick Court of Appeal. Drapeau, C.J.N.B., released the following written reasons in both official languages on November 13, 2003.