The Press Box Inc. et al. v. Atlantic Lottery Corp., (2015) 441 N.B.R.(2d) 346 (TD)

• Judge: Rideout, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 16, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 441 N.B.R.(2d) 346 (TD);2015 NBQB 191

Press Box Inc. v. Atlantic Lottery (2015), 441 N.B.R.(2d) 346 (TD);

    441 R.N.-B.(2e) 346; 1152 A.P.R. 346

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. NO.019

Renvoi temp.: [2015] N.B.R.(2d) TBEd. NO.019

The Press Box Inc., a body corporate, and James Whalen (plaintiffs) v. Atlantic Lottery Corporation Inc. (defendant)

(M/C/147/2010; 2015 NBQB 191; 2015 NBBR 191)

Indexed As: The Press Box Inc. et al. v. Atlantic Lottery Corp.

Répertorié: The Press Box Inc. et al. v. Atlantic Lottery Corp.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

October 1, 2015.

Summary:

Résumé:

In 2010, Atlantic Lottery intended to remove a number of its video lottery terminals (VLTs) from a Moncton pub owned by the plaintiffs The Press Box Inc. (Press Box) and Whalen. The plaintiffs obtained an interlocutory injunction preventing the removal of the VLTs pending trial. The bar was located in a building owned by a numbered company (owned by Whalen's wife). In 2012, the numbered company sold the building and the bar ceased operations. The plaintiffs claimed damages from Atlantic Lottery for, inter alia, intentional infliction of economic loss. Two motions were before the court: (1) Atlantic Lottery sought security for costs on the ground that Press Box had no assets in New Brunswick; and (2) the plaintiffs moved that the numbered company be added as a plaintiff.

The New Brunswick Court of Queen's Bench, Trial Division, allowed Atlantic Lottery's motion and ordered that Press Box provide $10,000 security for costs. The plaintiffs' motion failed to comply with the Rules of Court, in that, inter alia, it did not set out the precise order sought or the grounds or reference to the statutory provision or rule to be relied on. The plaintiffs were given an opportunity to file an amended Notice of Motion, but failed to do so. The plaintiffs' motion was struck from the Motions Day List, with leave to re-file.

Practice - Topic 8112

Costs - Security for costs - Where plaintiff insolvent or impecunious - In 2010, Atlantic Lottery intended to remove a number of its video lottery terminals (VLTs) from a Moncton pub owned by the plaintiffs The Press Box Inc. (Press Box) and Whalen - The plaintiffs obtained an interlocutory injunction preventing the removal of the VLTs pending trial - The bar was located in a building owned by a numbered company (owned by Whalen's wife) - In 2012, the numbered company sold the building and the bar ceased operations - The plaintiffs claimed damages from Atlantic Lottery for, inter alia, intentional infliction of economic loss - Atlantic Lottery sought security for costs on the ground that Press Box had no assets in New Brunswick - The New Brunswick Court of Queen's Bench, Trial Division, ordered that Press Box provide $10,000 security for costs - Press Box had no assets respecting the bar - Although Press Box was now in the business of buying and selling vehicles, there was no evidence as to how successful that enterprise was - Atlantic Lottery met the rule 58.01(d) requirement of showing that Press Box might not have sufficient assets in New Brunswick to pay any costs award - However, ordering Press Box to pay the full $34,000 suggested by Atlantic Lottery as appropriate given the $1.5 million damages claim would effectively deny the plaintiffs their day in court - The court noted that it appeared to be a complex matter, making it difficult to determine at this time whether the plaintiffs had a good cause of action - See paragraphs 22 to 33.

Practice - Topic 8141

Costs - Security for costs - Amount of security - General principles - [See Practice - Topic 8112 ].

Cases Noticed:

Williamson et al. v. Gillis et al. (2011), 374 N.B.R.(2d) 311; 965 A.P.R. 311 (C.A.), refd to. [para. 16].

Frothingham v. Regional Health Authority B et al. (2012), 388 N.B.R.(2d) 204; 1006 A.P.R. 204; 2012 NBQB 155, refd to. [para. 17].

Strang's Salmonid Hatchery v. Scarborough Canvas Fabricators Ltd. (1988), 94 N.B.R.(2d) 352; 239 A.P.R. 352 (T.D.), refd to. [para. 19].

Larocque v. Coseco Insurance Co. (2008), 333 N.B.R.(2d) 204; 855 A.P.R. 204 (C.A.), refd to. [para. 20].

036550 (N.B.) Ltd. v. Shenstone Investments Ltd. (1987), 79 N.B.R.(2d) 271; 201 A.P.R. 271 (T.D.), refd to. [para. 26].

Statutes Noticed:

Rules of Court (N.B.), rule 39.01(4), rule 47.09, rule 58.01(c), rule 58.03, rule 58.04, rule 58.05, rule 59.02 [para. 13].

Counsel:

Avocats:

Kenneth W. Martin, for the plaintiffs;

Matthew McEwen, for the defendant.

These motions were heard on September 16, 2015, at Moncton, N.B., before Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on October 1, 2015.