Oley and Moffatt v. Fredericton (City), (1984) 57 N.B.R.(2d) 361 (CA)

• Judge: Stratton, C.J.N.B., Ryan and Hoyt, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 13, 1984
• Jurisdiction: New Brunswick
• Citations: (1984), 57 N.B.R.(2d) 361 (CA);1984 CanLII 50 (NB CA);57 NBR (2d) 361;15 DLR (4th) 269;148 APR 361;28 MPLR 301

Oley v. Fredericton (1984), 57 N.B.R.(2d) 361 (CA);

    57 R.N.-B.(2e) 361; 148 A.P.R. 361

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Oley and Moffatt v. Fredericton

(No. 178/84/CA)

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

Répertorié: Oley and Moffatt v. Fredericton (City)

New Brunswick Court of Appeal

Stratton, C.J.N.B., Ryan and Hoyt, JJ.A.

November 13, 1984.

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 judgment reported (1984), 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 to permit construction to prevent damage from soil erosion in the development area. The New Brunswick Court of Queen's Bench, in a judgment not reported 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, in a judgment reported (1984), 50 N.B.R.(2d) 196; 131 A.P.R. 196, refused leave to appeal.

The city enacted another bylaw to replace the quashed portion of the previous bylaw. The same residents again applied to quash all three bylaws and for a restraining injunction.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported (1984), 54 N.B.R.(2d) 418; 140 A.P.R. 418, dismissed the application. The residents appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - The New Brunswick Court of Appeal stated that issue estoppel (estoppel by record) applied only where (1) the same question was previously judicially decided, (2) the judicial decision allegedly creating the estoppel was final and (3) the parties to the judicial decision were the same parties to the proceedings in which the estoppel was raised - See paragraph 10.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - City residents twice attacked the validity of two city bylaws - They made the same arguments on the second application as the first - The New Brunswick Court of Appeal affirmed that the rule of issue estoppel (as well as s. 94.1(2) of the Community Planning Act) precluded the raising of the same issues again - See paragraphs 12 to 14.

Land Regulation - Topic 2613

Land use control - Zoning bylaws - Enactment and interpretation - Validity of zoning bylaw not conforming to master plan - City residents attacked an amending zoning bylaw on the ground that it was contrary to policy statements in the city's municipal plan - The bylaw amended the plan - The New Brunswick Court of Appeal affirmed that s. 74 of the Community Planning Act expressly authorized a city council to amend the municipal plan in a way that may alter or contradict a proposal or policy outlined or suggested in that plan - See paragraphs 15 to 25.

Municipal Law - Topic 3384

Bylaws - Enactment - Statutory requirements - Section 66(1) of the Community Planning Act required a city council to request the views of its planning advisory committee before enacting a bylaw in respect of which the committee's views were not previously given - A council informally requested the views of its committee just before, and the committee met just after, first and second reading of a bylaw - The New Brunswick Court of Appeal affirmed that s. 66(1) was sufficiently complied with so as not to render the bylaw invalid - See paragraphs 26 to 32.

Municipal Law - Topic 3848

Bylaws - Quashing bylaws - Grounds - Uncertainty - A city bylaw amended the permitted uses within an "institutional" zone to include "municipal servicing facilities" - The New Brunswick Court of Appeal affirmed that the use of this expression did not render the bylaw void for uncertainty - See paragraphs 42 to 44.

Municipal Law - Topic 3857

Bylaws - Quashing bylaws - Grounds - Discretion - Prior fettering of - Section 68 of the Community Planning Act required a municipality to hear and consider objections to proposed bylaws - A bylaw was proposed to al low construction of a sewage lagoon - City residents submitted that a cost-sharing agreement with the province fettered the city's discretion to fairly hear and consider objections to the bylaw - The New Brunswick Court of Appeal held that s. 68 was complied with, where there was no convincing evidence that objections were not honestly heard and considered or that the city fettered its discretion by making an irrevocable decision to enact the bylaw, especially where the agreement did not contractually obligate the city to construct the lagoon - See paragraphs 33 to 41.

Municipal Law - Topic 3859

Bylaws - Quashing bylaws - Grounds - Conflict with statute - City residents attacked an amending zoning bylaw on the ground that it was contrary to policy statements in the city's municipal plan and therefore illegal as being contrary to s. 27 of the Community Planning Act - The New Brunswick Court of Appeal affirmed that the bylaw was valid, because s. 74 of the Act expressly authorized a city council to amend the municipal plan in a way that may alter or contradict a proposal or policy outlined or suggested in that plan - See paragraphs 15 to 25.

Cases Noticed:

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R.(3d) 544 (S.C.C.), refd to. [para. 8].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853, appld. [para. 10].

Re Huson and South Norwich (1892), 19 O.A.R. 343, affd. (1892), 21 S.C.R. 669, refd to. [para. 30].

Welbridge Holdings Ltd. v. Metropolitan Corporation of Greater Winnipeg, [1971] S.C.R. 957, refd to. [para. 35].

McGill v. Corporation of the City of Brantford (1980), 12 M.P.L.R. 24, appld. [para. 36].

Vancouver v. Registrar Vancouver Land Registration District, [1955] 2 D.L.R. 709 (B.C.C.A.), dist. [para. 40].

Galt-Canadian Woodworking Machinery Ltd. et al. v. Corporation of the City of Cambridge et al. (1983), 22 M.P.L.R. 208 (Ont. C.A.), dist. [para. 40].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-13, sect. 1 [para. 18]; sect. 23(5)(a)(vii) [para. 44]; sect. 27(a), sect. 27.1 [paras. 7, 17]; sect. 66(1), sect. 66(2) [para. 26]; sect. 68 [para. 37]; sect. 74 [para. 16]; sect. 94.1(1), sect. 94.1(2) [para. 13].

Authors and Works Noticed:

Spencer-Bower and Turner, The Doctrine of Res Judicata (2nd Ed. 1969), pp. 152-153 [para. 11].

Rogers, The Law of Canadian Municipal Corporations, p. 432 [para. 30].

Counsel:

Patrick E. Hurley, for the appellants (applicants);

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

This appeal was heard before Stratton, C.J.N.B., Ryan and Hoyt, JJ.A., of the New Brunswick Court of Appeal.

On November 13, 1984, Stratton, C.J.N.B., delivered the following judgment for the Court of Appeal.