Oley and Moffatt v. Fredericton (City), (1983) 50 N.B.R.(2d) 196 (CA)

• Judge: Stratton, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 24, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 50 N.B.R.(2d) 196 (CA);1983 CanLII 2822 (NB CA);50 NBR (2d) 196;5 DLR (4th) 548;22 ACWS (2d) 321

Oley v. Fredericton (1983), 50 N.B.R.(2d) 196 (CA);

    50 R.N.-B.(2e) 196; 131 A.P.R. 196

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Oley and Moffatt v. Fredericton, City of

(No. 231/83/CA)

Indexed As: Oley and Moffatt v. Fredericton (City)

Répertorié: Oley and Moffatt v. Fredericton (City)

New Brunswick Court of Appeal

Stratton, J.A.

October 25, 1983.

Summary:

Résumé:

Two city residents applied to quash two city bylaws, and for an injunction to restrain the city from continuing work to construct a sewage lagoon on lands affected by the two bylaws.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported in 50 N.B.R.(2d) 157; 131 A.P.R. 157, allowed the application, and quashed a portion of one of the bylaws. The court granted the injunction to restrain the development of the sewage lagoon.

Because the issue of soil erosion in the development area was not dealt with on the application, the city applied to vary the injunction order to permit construction to prevent damage from soil erosion in the development area.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision unreported in this series of reports, allowed the application. The court issued a supplementary order directing that the injunction be varied to permit the city to take necessary steps to prevent soil erosion damage. The residents applied for leave to appeal on the ground that the court lacked jurisdiction to vary the injunction.

The New Brunswick Court of Appeal refused leave to appeal.

Practice - Topic 6107

Judgments and orders - Amendment, rescission and variation of judgments and orders - Variation - Circumstances permitting - The New Brunswick Court of Appeal stated that the general rule respecting amendment of orders was that, except by way of appeal, no court or judge had power to alter or vary an order after it was entered or drawn up, either in an application made in the original action or in a fresh action brought to review the order - The court applied its inherent jurisdiction, however, to vary or clarify an order to carry out the court's meaning or make the language plain - See paragraphs 8 to 14.

Practice - Topic 6107

Judgments and orders - Amendment, rescission and variation of judgments and orders - Variation - Circumstances permitting - Residents obtained an injunction to restrain a city from continuing with a development (the construction of a sewage lagoon) - Because of matters subsequently brought to the court's attention, the city obtained a variance of the injunction to permit construction to prevent soil erosion in the development area - The New Brunswick Court of Appeal held that the court had inherent jurisdiction to vary the injunction upon circumstances previously undisclosed and to work out the rights declared, so that the order would correctly express the court's objective - See paragraphs 8 to 14.

Cases Noticed:

Williams et al. v. Adie (1966), 57 W.W.R.(N.S.) 221, refd to. [para. 8].

Lawrie v. Lees (1881), 7 App. Cas. 19, refd to. [para. 10].

Meier v. Meier, [1948] P. 89, refd to. [para. 11].

Cristel v. Cristel, [1951] 2 All E.R. 574 (C.A.), refd to. [para. 13].

Statutes Noticed:

Rules of Court (N.B.), rule 62.03(4)(b) [para. 7].

Authors and Works Noticed:

Supreme Court Practice, 1970, pp. 326-327 [para. 13].

Halsbury's Laws of England (4th Ed.), vol. 26, paras. 554 [para. 13]; 556 [para. 10].

Jacob, I.H., The Inherent Jurisdiction of the Court, 23 Current Legal Problems 39 [para. 12].

Counsel:

Patrick E. Hurley, for the appellant;

Charles S. Shannon and James R. Moase, for the respondent.

This application was heard before Stratton, J.A., of the New Brunswick Court of Appeal, on October 24, 1983. The decision of Stratton, J.A., was delivered on October 25, 1983.