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Harris and H.A.R. Construction Limited v. W.H. Goodwin & Co. Ltd. and Goodwin, 2008 NBCA 14 (CanLII)

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Date:	2008-02-14
Docket:	43/07/CA
URL:	http://www.canlii.org/en/nb/nbca/doc/2008/2008nbca14/2008nbca14.html

Reflex Record (noteup and cited decisions)

Noteup

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Decisions cited

Beetham and D.B. Western v. Markessini, 2002 NBQB 37 (CanLII) — (2002), 247 N.B.R. (2d) 13 • (2002), 247 N.B.R. (2e) 13
Benoît c. Lemieux, 2003 NBBR 16 (CanLII)
Calumet International Inc. v. Maliseet Nation at Tobique, 2004 NBQB 149 (CanLII)
Dostie v. Royal & Sunalliance Insurance Company of Canada, 2004 NBQB 195 (CanLII) — (2004), 277 N.B.R. (2d) 203
Dubé v. Dionne et al., reflex — (1998), 201 N.B.R. (2d) 387 • (1998), 201 N.B.R. (2e) 387
Spencer v. Laforge, 2001 NBCA 35 (CanLII) — (2001), 237 N.B.R. (2d) 232 • (2001), 237 N.B.R. (2e) 232

COURT OF APPEAL OF

NEW BRUNSWICK

43/07/CA

RICHARD A. HARRIS

AND H.A.R. CONSTRUCTION LIMITED

(Plaintiffs) APPELLANTS

RICHARD A. HARRIS

ET H.A.R. CONSTRUCTION LIMITED

(Demandeurs) APPELANTS

- and -

- et -

W.H. GOODWIN & CO. LTD.

AND W. HARRISON GOODWIN

(Defendants) RESPONDENTS

W.H. GOODWIN & CO. LTD.

ET W. HARRISON GOODWIN

(Défendeurs) INTIMÉS

Harris and H.A.R. Construction Limited

v. W.H. Goodwin & Co. Ltd. and Goodwin,

2008 NBCA14

Harris et H.A.R. Construction Limited

c. W.H. Goodwin & Co. Ltd. et Goodwin,

2008 NBCA 14

CORAM:

The Honourable Justice Turnbull

The Honourable Justice Richard

The Honourable Justice Bell

CORAM :

L’honorable juge Turnbull

L’honorable juge Richard

L’honorable juge Bell

Appeal from a decision of

the Court of Queen’s Bench:

February 26, 2007

Appel d’une décision de

la Cour du Banc de la Reine :

Le 26 février 2007

History of case:

Decision under appeal:

Unreported

Preliminary or incidental proceedings:

N/A

Historique de la cause :

Décision frappée d’appel :

Inédite

Procédures préliminaires ou accessoires :

S.O.

Appeal heard:

November 22, 2007

Appel entendu :

Le 22 novembre 2007

Judgment rendered:

February 14, 2008

Jugement rendu :

Le 14 février 2008

Counsel at hearing:

For the appellants:

David H. Dunsmuir

For the respondents:

Hugh J. Cameron

Avocats à l’audience :

Pour les appelants :

David H. Dunsmuir

Pour les intimés :

Hugh J. Cameron

THE COURT:

The appeal is allowed with costs of $2,500, and the summary judgment dismissing the action against W. Harrison Goodwin is set aside.

LA COUR

L’appel est accueilli avec dépens de 2 500 $ et le jugement sommaire rejetant l’action intentée à W. Harrison Goodwin est annulé.

The following is the judgment delivered by

THE COURT

[1] In an unreported decision dated February 26, 2007, a judge of the Court of Queen’s Bench summarily dismissed H.A.R. Construction Limited and Richard A. Harris’ action against W. Harrison Goodwin but allowed the action to proceed against W.H. Goodwin & Co. Ltd. The summary judgment was issued pursuant to Rule 22 of the Rules of Court.

[2] Rule 22.02(2) provides as follows:

22.02 Affidavit Evidence

(2) A defendant applying for summary judgment shall file and serve an affidavit

(a) setting out the facts verifying his contention that there is no merit in the whole or part of the claim, and

(b) stating that he knows of no fact which would substantiate the whole or part of the claim.

22.02 Preuve par affidavit

(2) Le défendeur qui demande un jugement sommaire doit déposer et signifier un affidavit

a) exposant les faits qui appuient son argument voulant que la demande, en tout ou en partie, ne soit pas fondée et

b) dans lequel il affirme ne connaître aucun fait qui puisse justifier la demande en tout ou en partie.

[3] In the present case, the affidavit filed by W. Harrison Goodwin in support of his motion for summary judgment did not meet the requirements of Rule 22.02(2), in that it did not state that he knows of no facts which would substantiate the whole or part of the claim. On appeal, counsel for W. Harrison Goodwin argued that this requirement should not be read as mandatory. Alternatively, he maintained that Mr. Goodwin’s failure to comply with this requirement should be excused by application of Rule 2.02, which permits flexibility in the face of procedural errors.

[4] A review of the jurisprudence reveals that the requirement set out in Rule 22.02 has consistently been regarded as mandatory. As Drapeau J.A. (now Chief Justice) stated in Dubé v. Dionne et al. reflex, (1998), 201 N.B.R. (2d) 387 (C.A.), [1998] N.B.J. No. 241 (QL), at para 11, “Rule 22.02 expressly provides for filing and service of affidavits by the moving party. This rule sets out the minimum requirements of what must be included in the affidavit.” In Caissie v. Sénéchal Estate et al. 2001 NBCA 35 (CanLII), (2001), 237 N.B.R. (2d) 232, [2001] N.B.J. No. 120 (QL), 2001 NBCA 35, he added, at para. 14, that “[t]he evidentiary record must include an affidavit by the moving party that complies with Rule 22.02.”

[5] Several decisions of the Court of Queen’s Bench also highlight the importance of strict compliance with the requirements of Rule 22.02, including New Brunswick Milk Dealers Association v. New Brunswick Milk Marketing Board (1984), 56 N.B.R. (2d) 413 (Q.B.), [1984] N.B.J. No. 263 (QL), at para. 6; Beetham v. Markessini et al. 2002 NBQB 37 (CanLII), (2002), 247 N.B.R. (2d) 13, [2002] N.B.J. No. 28 (QL), 2002 NBQB 37, at para. 48; Benoît c. Lemieux, [2002] N.B.R. (2d) (Supp.) No. 95, [2002] A.N.-B. n^o 448 (QL), 2003 NBBR 16 (CanLII), 2003 NBBR 16, at paras. 8-13; Dostie v. Royal & Sunalliance Insurance Co. of Canada 2004 NBQB 195 (CanLII), (2004), 277 N.B.R. (2d) 203, [2004] N.B.J. No. 186 (QL), 2004 NBQB 195, at paras. 32-38; and Calumet International Inc. v. Maliseet Nation at Tobique 2004 NBQB 149 (CanLII), [2004] N.B.J. No. 137, 2004 NBQB 149, at paras. 5-11.

[6] The purpose and effect of the summary judgment Rule support the mandatory nature of the minimum requirements set out in Rule 22.02. Noting that “a trial on the merits is a right that is closely guarded by the courts”, in Dubé v. Dionne et al. this Court explained, at para. 9, that “Rule 22 confers upon a judge an extraordinary power authorizing him to put an end to a proceeding without a trial.”

[7] In our view, the minimum requirements of what must be included in an affidavit in support of an application for summary judgment reflect the extraordinary nature of the relief sought. When a party applies for such relief, the effect of which would be to deprive the opposing party of a trial, the supporting affidavit must, at the very least, comply with the minimum requirements set out in the Rule. The minimum requirements set out in Rule 22.02 are therefore substantive in nature, and not merely procedural. It follows that failure to comply with the requirements of Rule 22.02 is not a procedural irregularity.

[8] Given that the affidavit of Mr. Goodwin fails to state that he knows of no facts which would substantiate the whole or part of the Plaintiffs’ claim, the requirement was not met, and summary judgment was not available. We therefore conclude that, on the basis of the record before her, the motion judge erred in dismissing the action against W. Harrison Goodwin.

[9] For these reasons, the appeal is allowed and the summary judgment dismissing the action against W. Harrison Goodwin is set aside. It follows that those portions of the Statement of Claim dealing with the claim against Mr. Goodwin that the motion judge struck out as a result of the summary judgment are restored to their original state. Portions of the Statement of Claim that were struck out on other grounds and that were not the subject of this appeal remain unaffected. We order the respondent, W. Harrison Goodwin, to pay the appellants costs in the amount of $2,500.

__________________________________

WALLACE. S. TURNBULL, J.A.

__________________________________

J. C. MARC RICHARD, J.A.

___________________________________

B. RICHARD BELL, J.A.

Fact of option of Richard Harris!

( 1) The affidavit filed by W. Harrison Goodwin in support of his motion for summary judgment! part of the Affidavit was a copy of his Report? that was change ? Richard did not see this until it was serve on him on February of 2007?

(2) Harrison Goodwin Lawyer knew Richard Harris was waiting to get his files back from his X lawyers firm PATTERSON PALMER Law?

(3) Hugh J. Cameron lawyer for Goodwin knew I was waiting for my files to make amendment on my Statement of Claim?