Province of New Brunswick v. LeBlanc,

• Jurisdiction: New Brunswick
• Judge: Larlee, Bell and Quigg, JJ.A.
• Neutral Citation: 2013 NBCA 9
• Citation: (2012), 398 N.B.R.(2d) 83 (CA),2013 NBCA 9,398 NBR (2d) 83,[2013] NBJ No 24 (QL),[2013] N.B.J. No 24 (QL),398 N.B.R.(2d) 83,(2012), 398 NBR(2d) 83 (CA),398 NBR(2d) 83
• Date: 10 October 2012
• Court: Court of Appeal (New Brunswick)

N.B. v. LeBlanc (2012), 398 N.B.R.(2d) 83 (CA);

    398 R.N.-B.(2e) 83; 1032 A.P.R. 83

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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: [2013] N.B.R.(2d) TBEd. FE.009

Renvoi temp.: [2013] N.B.R.(2d) TBEd. FE.009

Province of New Brunswick, as Represented by the Minister of Transportation and Infrastructure and the Minister of Education and Early Childhood Development (respondent/appellant) v. Mark LeBlanc, Debora Jeffery, Roy MacMullin and Scott Agnew (applicants/respondents)

(109-12-CA; 2013 NBCA 9)

Indexed As: New Brunswick et al. v. LeBlanc et al.

Répertorié: New Brunswick et al. v. LeBlanc et al.

New Brunswick Court of Appeal

Larlee, Bell and Quigg, JJ.A.

October 10, 2012.

Summary:

Résumé:

The Province of New Brunswick decided to construct a new facility and close the Moncton High School. On July 5, 2011, after extensive consultation, the Minister of Education and Early Childhood Development announced the new high school facility would be located on Elmwood Drive in Moncton. Section 45 of the Education Act required that the District Education Council provide input on the "general location" of a new school before the Minister made his site selection. On or about March 21, 2012, the applicants learned, through media reports, that the District Education Council Chairperson claimed he had no input into the Province's decision regarding the location of the new school. On June 14, 2012, approximately 11 months after the Minister's announcement, the applicants applied for judicial review of the decision to locate the new school facility on Elmwood Drive. The Province moved for summary dismissal of the application because it was out of time. The motions judge dismissed the motion. The Provincial moved for leave to appeal.

The New Brunswick Court of Appeal, per Bell, J.A., in a decision reported at [2012] N.B.R.(2d) Uned. 73, granted leave to appeal.

The New Brunswick Court of Appeal allowed the appeal.

Administrative Law - Topic 3342

Judicial review - Practice - Limitation period - The Province of New Brunswick decided to construct a new facility and close the Moncton High School - On July 5, 2011, after extensive consultation, the Minister of Education and Early Childhood Development announced the new high school facility would be located on Elmwood Drive in Moncton - Section 45 of the Education Act required that the District Education Council (DEC) provide input on the "general location" of a new school before the Minister made his site selection - On or about March 21, 2012, the applicants learned, through media reports, that the DEC Chairperson claimed he had no input into the Province's decision regarding the location of the new school - On June 14, 2012, approximately 11 months after the Minister's announcement, the applicants applied for judicial review of the decision to locate the new school facility on Elmwood Drive - The Province moved for summary dismissal of the application because it was out of time (within three months under rule 69.03 of the Rules of Court) - The applicants contended that the limitation period started to run on March 21, 2012, the date they had reason to believe the DEC had not fulfilled its requirements under s. 45 of the Act - The motions judge dismissed the motion - The New Brunswick Court of Appeal allowed the Province's appeal - The language of rule 69.03 was clear - It stated that the limitation period started to run from the "date of the ... decision" - Accordingly, the applicants's application was out of time and they required an extension of time in order to proceed with their judicial review - See paragraphs 13 to 16.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - The Province of New Brunswick decided to construct a new facility and close the Moncton High School - On July 5, 2011, after extensive consultation, the Minister of Education and Early Childhood Development announced the new high school facility would be located on Elmwood Drive in Moncton - Section 45 of the Education Act required that the District Education Council (DEC) provide input on the "general location" of a new school before the Minister made his site selection - On or about March 21, 2012, the applicants learned, through media reports, that the DEC Chairperson claimed he had no input into the Province's decision regarding the location of the new school - On June 14, 2012, approximately 11 months after the Minister's announcement, the applicants applied for judicial review of the decision to locate the new school facility on Elmwood Drive - The Province moved for summary dismissal of the application because it was out of time (within three months under rule 69.03 of the Rules of Court) - The motions judge dismissed the motion - It was unclear whether he extended the time for filing or whether he concluded no extension was necessary because of the new information obtained in and around March 21, 2012 - The Province appealed - The New Brunswick Court of Appeal allowed the appeal - There were two factors to consider before extending time for commencing an application under rule 69.03: (1) whether the extension would cause "substantial prejudice to anyone"; and (2) whether "exceptional circumstances" caused the party to miss the limitation period - The motion judge erred in finding that there was no substantial prejudice to anyone - He limited his analysis to whether there was prejudice to the Province - He failed to consider the potential prejudice to students, teachers, other employees, contractors and suppliers involved in the project - The "exceptional circumstances" advanced by the applicants included observations that they were busy lobbying politicians, holding and/or attending meetings, and, in one case, pre-occupied with personal matters - Clearly, none of those reasons constituted exceptional circumstances - See paragraphs 17 to 25.

Droit administratif - Cote 3342

Révision judiciaire - Généralités - Procédure - Délai de prescription - [Voir Administrative Law - Topic 3342 ].

Droit administratif - Cote 3342.1

Révision judiciaire - Procédure - Délai de prescription - Prolongation du délai - [Voir Administrative Law - Topic 3342.1 ].

Cases Noticed:

Minister of Municipal Affairs v. Hache (1968), 1 N.B.R.(2d) 67 (C.A.), refd to. [para. 13].

Booth et al. v. Island Regulatory and Appeals Commission (P.E.I.) (2004), 242 Nfld. & P.E.I.R. 29; 719 A.P.R. 29; 2004 PESCAD 18, refd to. [para. 13].

Central Halifax Community Association v. Halifax (Regional Municipality) et al. (2007), 253 N.S.R.(2d) 203; 807 A.P.R. 203; 2007 NSCA 39, leave to appeal denied (2007), 379 N.R. 393 (S.C.C.), refd to. [para. 14].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 20].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 20].

Doiron v. Haché (2005), 290 N.B.R.(2d) 79; 755 A.P.R. 79; 2005 NBCA 75, refd to. [para. 20].

J.A.M. v. D.L.M. (2008), 326 N.B.R.(2d) 111; 838 A.P.R. 111; 2008 NBCA 2, refd to. [para. 20].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 21].

A.A. v. C.A. (2011), 381 N.B.R.(2d) 199; 984 A.P.R. 199; 2011 NBCA 109, refd to. [para. 21].

Construction B.H.M. ltée et al. v. Caisse populaire de Shippagan ltée (2012), 386 N.B.R.(2d) 373; 999 A.P.R. 373; 2012 NBCA 30, refd to. [para. 21].

Smith v. Human Rights Commission (N.B.) et al. (1999), 217 N.B.R.(2d) 336; 555 A.P.R. 336 (C.A.), refd to. [para. 22].

R. v. Guitare (E.), [2001] N.B.R.(2d) (Supp.) No. 61 (C.A.), refd to. [para. 23].

Blue v. Board of Education of Antigonish District (1990), 95 N.S.R.(2d) 118; 251 A.P.R. 118 (T.D.), refd to. [para. 24].

Chin v. Minister of Employment and Immigration (1993), 69 F.T.R. 77 (T.D.), refd to. [para. 24].

Statutes Noticed:

Rules of Court (N.B.), rule 69.03 [para. 17].

Counsel:

Avocats:

Richard A. Williams and Maya Hamou, for the appellant;

Alison J. Ménard, for the respondents.

This appeal was heard and decided on October 10, 2012, by Larlee, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following written reasons for judgment of the Court of Appeal was delivered in both official languages by Bell, J.A., on January 24, 2013.