Monday, January 12, 2009

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

COURT OF APPEAL OF COUR D’APPEL DU

NEW BRUNSWICK NOUVEAU-BRUNSWICK

100-05-CA

RICHARD A. HARRIS

APPELLANT

RICHARD A. HARRIS

APPELANT

- and -

- et -

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, as represented by the MINISTER OF TRANSPORTATION

RESPONDENT

SA MAJESTÉ LA REINE DU CHEF DU NOUVEAU-BRUNSWICK, représentée par le MINISTRE DES TRANSPORTS

INTIMÉE

Harris v. The Queen as Represented by the Minister of Transportation, 2008 NBCA 82

Harris c. La Reine, représentée par le ministre des Transports, 2008 NBCA 82

CORAM:

The Honourable Justice Larlee

The Honourable Justice Richard

The Honourable Justice Quigg

CORAM :

L’honorable juge Larlee

L’honorable juge Richard

L’honorable juge Quigg

Appeal from a decision of the Court of Queen's Bench:

June 3, 2005

Appel d’une décision de la Cour du Banc de la Reine :

Le 3 juin 2005

History of Case:

Historique de la cause :

Decision under appeal:

2005 NBQB 197 (CanLII), 2005 NBQB 197

Décision frappée d’appel :

2005 NBBR 197

Preliminary or incidental proceedings:

N/A

Procédures préliminaires ou accessoires :

s.o.

Appeal heard:

October 15, 2008

Appel entendu :

Le 15 octobre 2008

Judgment rendered:

November 20, 2008

Jugement rendu :

Le 20 novembre 2008

Reasons for judgment by:

The Honourable Justice Larlee

Motifs de jugement :

L’honorable juge Larlee

Concurred in by:

The Honourable Justice Richard

The Honourable Justice Quigg

Souscrivent aux motifs :

L’honorable juge Richard

L’honorable juge Quigg

Counsel at hearing:

For the appellant:

David H. Dunsmuir

For the respondent:

David D. Eidt

Avocats à l’audience :

Pour l’appelant :

David H. Dunsmuir

Pour l’intimée :

David D. Eidt

THE COURT

The appeal is dismissed with costs of $3,500.

LA COUR

Rejette l’appel avec dépens de 3 500 $.


The judgment of the Court was delivered by

LARLEE, J.A.

[1] The appellant, Richard Harris, appeals one aspect of a decision of the Court of Queen’s Bench, which fixed compensation pursuant to the Expropriation Act, R.S.N.B. 1973, c. E-14, for a partial taking of land for a highway widening project. The decision is reported at 2005 NBQB 197 (CanLII), (2005), 283 N.B.R. (2d) 184, [2005] N.B.J. No. 220 (QL), 2005 NBQB 197.

[2] The respondent argues that Mr. Harris cannot maintain an appeal because the land that is the subject of this appeal was owned at the time of the expropriation byA.R. Construction Limited, Mr. Harris’ corporation. Section 1 of the Act defines owner as including “… any person holding an estate, easement, license or other right or interest in, to, over or affecting land.” The duty of a statutory authority to compensate is found at Part II, s. 25 of the Act: H.

Where land is expropriated or injuriously affected, or where property other than land is taken, interfered with or injured under authority of a statute that requires compensation to be paid, the statutory authority shall pay each owner compensation determined in accordance with this Part.

[Emphasis added.]

[3] Section 31(1) of the Act provides that where a statutory authority and an owner have not agreed upon compensation payable under the Act in respect of the expropriation or injurious affection authorized by the Act, either the statutory authority or the owner may apply to the Court of Queen’s Bench to settle any dispute between them by serving upon the other of them and the Court a notice of arbitration.

[4] Section 31(3) of the Act provides that a notice of arbitration shall state the name of the owner. The notice of arbitration named both H.A.R. Construction Limited and Richard Harris as owners. The Act does not differentiate between corporations and natural persons as owners. The style of cause in the application named H.A.R. Construction Limited, Richard Harris, and Richard James Joseph Harris as applicants. H.A.R. Construction Limited is not a party to this appeal, yet the land in question in this appeal, Lot 97-3 (part of PID #60047644, DOT Plans 12-2-0036 and 12-2-0037), is land in which H.A.R. Construction Limited held “… an estate, easement, licence or other right or interest in, to, over or affecting land” within the meaning of owner under the Act. There was no evidence before the Court, on the hearing of the arbitration, that Mr. Harris had any such interest in the land in question. The evidence is that after the expropriation, the land was transferred by deed on December 13, 1999, from H.A.R. Construction Limited to Mr. Harris’ son, Richard James Joseph Harris. For all intents and purposes the company is no longer in existence. I agree with the respondent that Mr. Harris has no capacity to appeal the decision of the Court of Queen’s Bench in place of H.A.R. Construction Limited. Therefore, this Court is without jurisdiction to hear the appeal, and I would dismiss it.

[5] That said I would have dismissed the appeal, in any event, on the merits. I am of the view that the application judge did not make a palpable and overriding error in coming to his decision. Briefly, here are the reasons.

[6] In 1993, Mr. Harris and H.A.R. Construction Limited acquired a 12.66-hectare parcel of land for $25,000. In December of 1996, the Department of Transportation advised Mr. Harris by letter that it intended to survey the lands for possible use in the construction of the new Trans-Canada Highway. In January of 1997, Mr. Harris filed a plan to further subdivide the land, but the Rural Planning District Commission refused approval of the plan. In September of 1997, the Province sent a Notice of Intention to Expropriate, and repeatedly revised the amount offered for the parcels to be taken, based on appraisal reports and reflecting “the development potential of the property.” On June 20, 2000, Mr. Harris filed a Notice of Arbitration, claiming $909,614.65 for loss of investment, loss of future income, and remediation costs.

[7] A number of parcels of land were involved in this expropriation. The application judge quantified each parcel of land, and awarded, for the land itself and as reimbursement for site preparation work, site clean-up work, and costs of a culvert, $52,846.65 plus interest, less the $20,726.00 the respondent had already paid. With respect to the parcel of land that is the subject of this appeal, Lot 97-3, the application judge rejected Mr. Harris’ claim for business loss, and held that the subdivision plan had been “prepared to bolster his claim for compensation in face of the impending expropriation.” He found that the value of the land taken was $2,726.

[8] In his decision, the application judge identified and applied the principles that govern an assessment of this type. Specifically, he used the comparative sales or market data approach to valuation instead of the land development subdivision approach. In rejecting the latter method he relied on Eric Todd, The Law of Expropriation and Compensation in Canada, 2nd ed. (Toronto: Carswell, 1992) at 218-19; R.P.B. Construction Ltée. v. Nouveau-Brunswick (Ministre des Transports) (reflex-logo) reflex, (1995), 168 N.B.R. (2d) 365 (Q.B.), [1995] N.B.J. No. 519 (QL) and Sutherland v. Langley (Township) (1997), 39 M.P.L.R. (2d) 277 (B.C.S.C.), [1997] B.C.J. No. 1716 (QL). See also Maguire v. Province of New Brunswick (1976), 13 N.B.R. (2d) 624, rev’d on other grounds (1976), 16 N.B.R. (2d) 189 (C.A.), [1976] N.B.J. No. 249 (QL).

[9] The application judge assessed the evidence, accepted the evidence of certain experts, and made findings of fact that are supported by that evidence. I am unable to discern any error that would justify appellate intervention, and in fact, am in substantial agreement with the reasons given by the application judge.

[10] For the reasons set out in paragraphs 1-4, I would dismiss the appeal and order costs of $3,500.




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
Parallel citations: (2008), 327 N.B.R. (2d) 96
URL:http://www.canlii.org/en/nb/nbca/doc/2008/2008nbca14/2008nbca14.html
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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-logo) 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. no 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.

Posted by Richard A. Harris at 2:40 AM

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