List of New Brunswick case law

Significant lawsuits of New Brunswick are described, if not elsewhere, here (in chronological order).

Gesner v Cairns (1852)

Gesner maintained that Cairns trespassed the property leased by the former, felled trees on it, spoliated it and expropriated 1,000 tons of valuable material. Gesner maintained the material to be asphaltum, while Cairns was a coal miner. The defendant was evidently permitted to mine coal, not asphaltum. The evidence presented to the jury was of a technical nature and regarded the nature of the material. The defendant won the day.^[1]

Dow v Black

Dow v Black was one of the first major cases examining in detail the division of powers between the federal Parliament and the provincial Legislatures, set out in s. 91 and s. 92 of the British North America Act.

Maher v Town Council of Portland

Maher v Town Council of Portland tested the constitutional guarantees for denominational schools set out in section 93 of the British North America Act. The issue was whether the Common Schools Act 1871 infringed the guarantee of denominational schools set out in section 93(1).

Russell v R

Russell v R is a landmark Privy Council decision regarding the interpretation of the British North America Act 1867, and was one of the first cases explaining the nature of the peace, order and good government power in Canadian federalism. Specifically, it dealt with the powers of Parliament to delegate authority, in this case under the Canada Temperance Act, to, in this instance, municipal councils.

Maritime Bank Liquidators v New Brunswick

This case decided that the (Provincial) Crown was entitled to superior status in monies on demand deposit with respect to other creditors in the liquidation of a bank. Lord Watson:^[2]

AG v AG

With the accession to the Dominion of several new provinces after 1900, the Attorneys-General of New Brunswick and of Prince Edward Island had suit against the AG Canada for interpretations disfavourable to their electors.^[3]

Saint John Pilot Commissioners v Cumberland Railway

Whether the Cumberland Railway and Coal Company were liable to the predations of the Saint John Pilot Commissioners was the case in issue here.^[4]

Inglewood v NB Power (1928)

Inglewood v NB Power, in which the Judicial Committee of the Privy Council affirmed the judgment of the NB Supreme Court, dealt with the interest payable on expropriation, and whether or not the loss of game to hunt were actionable.^[5]

King v Assessors of Bathurst County (1928)

The issue of whether or not school taxes levied by a county were payable by an employer of significant size was the subject of King v Assessors of Bathurst County, ex parte Bathurst Company Ltd. The King (in effect, the corporation) asked whether the county was right to assess taxes in the amount it did.

Pitre v R (1932)

This 1932 Supreme Court of Canada decision confirmed the re-trial of Pitre, who was tried for murder, because of the error of the trial judge, upon the latter's misdirection of the jury. The trial judge charged the jury in such a way as to give the impression that they should not convict on the uncorroborated evidence of an accomplice and, unless they found corroborative evidence, their duty was to acquit; that this was a misdirection in law; and, under the circumstances, probably had a material effect upon the jury’s minds. The jury should be told that it is within their legal province to convict, but should be warned that it is dangerous to convict, and may be advised not to convict, on the uncorroborated evidence of an accomplice. Rex v. Baskerville, [1916] 2 KB. 658; Rex v. Beebe, 19 Cr. App. R. 22; Gouin v. The King, [1926] Can. S.C.R. 539, and other cases referred to. Rinfret, Lamont and Smith JJ. held that the trial judge had rightly refused to allow the evidence of a certain witness as to certain letters being in appellant’s handwriting, as the witness’ competency to testify in that regard had not been established; a witness may be competent to testify as to a person’s handwriting by reason of having become familiar with his handwriting through a regular correspondence; but in the present case the evidence to establish competency did not shew sufficient to constitute a “regular correspondence.”^[6]

Pitre was convicted at the re-trial, and was the last person hanged in Bathurst, the shire town for Gloucester County.

Atlantic Smoke Shops v Conlon (1943)

The Tobacco Tax Act, 1940 (N.B.), c. 44, provides, inter alia, that "every consumer of tobacco purchased at a retail sale in the province shall pay to" the province "for the raising of a revenue, at the time of making his purchase, a tax in respect of the consumption of such tobacco" (section 4); and the Act also provides that "every person residing or ordinarily resident or carrying on business in" the province "who brings into the province or who receives delivery in the province of tobacco for his own consumption or for the consumption of other persons at his expense or on behalf of or as agent for a principal who desires to acquire such tobacco for consumption by such principal or other persons at his expense * * * shall pay the same tax in respect of the consumption of such tobacco" (section 5). Section 10 provides that "a consumer shall be and remain liable for the tax imposed by the Act until the same has been collected." Under section 2 (a) "consumer" means not only any person who within the Province purchases tobacco for his own consumption, but also any other person who purchases tobacco in the Province as agent for his principal who desires to acquire such tobacco for consumption by such principal. It was also enacted (section 3 (2)) that only retail vendors licensed under the Act may sell tobacco at a retail sale in the province. Regulations made under the Act by Orders in Council were declared to have the force of statute (section 20 (2)). Regulation 6 provides that "every application for a (retail) vendor's license * * * shall contain an undertaking by the applicant to collect and remit the tax * * * and shall be in Form 2"; and when signing that Form, the applicant undertakes "to act as the agent of the Minister for the collection of the tax * * * and to account to the province * * * for all moneys so collected."

Appeal was made to the Supreme Court of Canada, where the majority held that the Act was within the constitutional powers of the province, except as to the provisions making the agent, who buys tobacco for his principal personally liable for the tax, which provisions were deemed to be severable.^[7]

Appeal was then made to the JCPC, which advised His Majesty on 30 July 1943 that the appeal fails and that the Tobacco Tax Act, 1940, is in all respects a valid exercise of the powers of the legislature of the province of New Brunswick. The order of the Supreme Court must, therefore, be varied by omitting the words “with the exception of the provisions thereof making the agent liable for the tax.”^[8]

Bathurst Assessors v R (1951)

AKA the ex parte suitor, Dexter v Gloucester. Dexter Construction had its head offices in Saint John County. It caused to be erected a subsidiary in Gloucester County. It considered that no taxes were owing in Gloucester County, on account of the Rates and Taxes Act, R.S.N.B. 1927, c. 190, s. 20. The Gloucester County assessors differed, and obtained a judgment that valued the property at $600,000. On appeal to the County Court Judge the latter reduced the assessment to $275,000 but otherwise confirmed it. The NBSC found for Dexter, but the SCC reversed the court below, and held that the County Court Judge was correct.^[9]

Gorton-Pew (1951-2)

Gorton-Pew Fisheries, Ltd., a large buyer of fish in Gloucester County, refused to pay for excess weight in three catches of fish. The catches, when weighed, were found to contain about fifteen per cent ice and trash. When the union allowed only a deduction of five per cent, Gorton-Pew withheld a part of the price. Subsequently, bids by Gorton-Pew were not recognized in the union selling rooms, and those who wanted to sell to them were threatened with a blacklisting and told they would not be permitted to hire union crews.^[10]

As a result, Gorton-Pew sought to de-certify the union, but was denied by the NBSC.^[11]

Winner v SMT (Eastern) Ltd (1954)

Winner v SMT (Eastern) Ltd, the last case of the JCPC that affected Canadian constitutional jurisprudence. One opinion observed that citizens were free to move across provincial borders and live wherever they chose to, and only the federal government could limit this right.

NB Electric Power Commission v Tobique Salmon Club (1966)

The NBEPC was deemed liable for injurious affection of the salmon fishing rights of the Club by reason of the NBEPC having, in 1953, constructed a dam across the non-tidal Tobique River near the point at which it flows into the Saint John River and, in 1957, a dam across the Saint John River at Beechwood, fourteen miles downstream from the Tobique Dam at a point also above tide water. No compulsory power of the NBEPC was exercised in respect of any land or fishing rights owned by the Club. No entry was made by the NBEPC into or upon any lands in which the Club owned an interest. The statutory liability created by the Act was clear to the Court, and hence there was liability on the part of the NBEPC to pay compensation to the Club.^[12]

Bathurst Paper Limited v. Minister of Municipal Affairs of NB (1971)

Under the New Brunswick Assessment Act, 1965–66, c. 110, as amended by 1967, c. 25, and 1968, c. 15, the power plant of the appellant company was assessed for tax for the year 1968. On appeal to the Appeals Tribunal set up under the Act, the company was held to be exempt under s. 3 of An Act relating to Bathurst Company, Limited, 1927 (N.B.), c. 75, which Act was confirmed by An Act respecting Bathurst Paper Limited—Les Papeteries Bathurst Limitée, 1966 (N.B.), c. 124. Section 18(2) of the Assessment Act provided for the continued recognition of tax concessions enjoyed before November 19, 1965. On a further appeal to the Court of Appeal, the majority of the Court concluded that because of the repeal by 1968, c. 15, s. 1(b), which had effect as of January 1, 1968, of paras. (ii) and (iv) of s. 1(i) (wherein “tax concession” was defined) the claim of exemption failed. Consequently, the assessment was restored. The company then appealed to the Supreme Court of Canada. The appeal was dismissed.^[13]

Minister of Municipal Affairs (N.B.) v Canaport Ltd (1975)

Respondent’s property which was assessed as “real property” consisted of an oil terminal on which were constructed various facilities consisting of ten welded steel plate tanks for storage of crude petroleum each having 250,000 barrel capacity, a ballast water tank of 100,000 barrel capacity, a water tank for fire fighting purposes and various other tanks. Respondent alleged that it was entitled to a “tax concession” in relation to these properties under s. 18 of the Assessment Act, 1965-66 (N.B.), c. 110, by virtue of being a subsidiary of Irving Oil Refining Limited and entitled to the concession conferred by the Irving Refining Limited Act, 1958 (N.B.), c. 72, but the trial judge and the Appeal Division were both satisfied that under s. 18(2) of the Assessment Act the concession only applied to companies in existence before November 19, 1965, and that the respondent, incorporated on July 2, 1968, was not entitled to it. There were further concurrent findings in both Courts that the ten tanks were structures providing shelter for moveable property (i.e. that they constituted “buildings” and fell to be assessed as “real property” within the meaning of s. 1(g)(ii) of the Assessment Act) but that they came within the exclusion in s. 1(g)(v). As a result a declaration was granted that the ten tanks were not “real property” within the meaning of the Assessment Act and not taxable as such under that Act. Held: The appeal should be allowed.^[14]

Irving Oil Co v Minister of Municipal Affairs of NB (1975)

Assessment was made of appellant’s property, consisting of storage tanks, substructures and associated pipes and facilities, on the assumption that the property constituted ‘real property’ within the meaning of s. 1 (g) of the Assessment Act. Appellant contended on the basis of Acadian Pulp & Paper Ltd. v. Minister of Municipal Affairs (1973), 6 N.B.R. (2d) 755, that the tanks in question were excluded from the definition of ‘real property’ as being ‘machinery, equipment, apparatus and installations other than those for providing services to buildings or mentioned in subclause (ii)’. The trial judge found that the property constituted ‘structures which provide storage and shelter for movable property’ but feeling bound by Acadian Pulp and Paper held that they also constituted ‘machinery, equipment, apparatus and installations other than those providing services to buildings’ and therefore by the operation of s. 1 (g) (v) not ‘real property’ within the meaning of s. 1 (g). The Appeal Division set aside the judgment at trial and distinguished Acadian Pulp and Paper. Held: The appeal should be dismissed.^[15]

Thorne's Hardware v R (1977)

This case pitted the plaintiffs, Thorne's Hardware Limited, Kent Lines Limited, Canaport Limited and Irving Oil Limited, against the National Harbours Board, over the extension of harbour limits. Appellants challenged in the Federal Court (1) the validity of an order in council extending the limits of the port of Saint John so as to include appellants' berth and harbour facilities and (2) the applicability to them of a National Harbours Board's By-law imposing harbour dues on all vessels entering or using the port. The Trial Division held the Order in Council intra vires the powers of the Governor in Council but the By-law to be inapplicable to the appellants. The Court of Appeal disagreed with the trial judge on the second point. Hence this appeal to determine whether the appellants are obliged to pay harbour dues. The appellants alleged that the Order in Council extending the limits of Saint John Harbour had been passed for improper motives to increase harbour revenues. It is neither the Court's duty nor its right to investigate the federal Cabinet's motives. Held: The appeal should be dismissed.^[16]

NB Broadcasting v NS Assembly Speaker (1993)

The Supreme Court of Canada ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada. Therefore, the Canadian Charter of Rights and Freedoms do not apply to members of Nova Scotia House of Assembly when they exercise their inherent privileges of refusing strangers from entering the House. This was decided via New Brunswick Broadcasting Co v Nova Scotia (Speaker of the House of Assembly).

Charlebois v Mowat (2001)

Charlebois impugned a by-law of the City of Moncton, represented by the defendant Mowat because it had not been translated into French, as considered by Charlebois it must. He relied on subsections 16(2) and 18(2) and section 16.1 of the Canadian Charter of Rights and Freedoms, and he submitted that the expression “statutes of the legislature” used in subsection 18(2) includes municipal by-laws and that this provision imposed on municipalities of the province an obligation to enact their by-laws in the two official languages. He argued that, given the significant percentage of the Francophones in this municipality, the obligation applies to the City of Moncton. His claim was successful.^[17]

Harrison et al v AG Canada and AG NB (2005)

Same-sex marriage in New Brunswick was legalised in summer 2005 by judicial fiat with the case of Harrison et al v AG NB.^[18] A few weeks later, federal Parliament under the guidance of Paul Martin made same-sex marriages legal throughout Canada by the Civil Marriage Act.

Judges' pensions (2005)

Judges' pensions were determined by the Supreme Court of Canada in Provincial Court Judges' Assn of New Brunswick v New Brunswick (Minister of Justice).

Brunswick News Inc. v Langdon (2007)

Brunswick News Inc. v Langdon^[19] was a 2007 Queen's Bench case in which the plaintiff employed an Anton Piller order, to enter the defendant's residence and search for some business files that it alleged had been misappropriated. The plaintiff moved for an injunction to halt the publication of the defendant's fledgling rival newspaper, the Carleton Free Press. In the event, the injunction was denied.

Mercer v Morrison (2010)

In this seemingly unreported case, a zealous official attempted to enforce the then newly-passed NB Building Code Act,^[20][21] against octogenarian Craig Morrison, of West Quaco, in Saint Martins Parish, New Brunswick.^[22] Six courtroom appearances and a front-page news story in the Saint John Telegraph Journal later, Morrison eventually won his battle at age 91.^[23] A film based on his tribulations was released just months after his death,^[22] to positive critical reviews;^[24][25] James Cromwell earned the Best Actor title for his work at the inaugural Canadian Screen Awards.^[26] The provincial agency that employs building inspector Wayne Mercer demanded: that the court forcibly remove Morrison and his wife, an Alzheimer's sufferer, from their home; that the house be bulldozed; and that Morrison be found in contempt of court, an imprisonable offence.^[27]

On 1 November 2010, New Brunswick Court of Queen's Bench Justice Hugh McLellan^[28] ordered the two parties to negotiate a settlement, which was done. The state relented and allowed them to abide "without further molestation, until they die."^[27] The legislation was not overturned.

R v Comeau (2015)

In 2015, the R v Comeau test case, over the validity of certain portions of New Brunswick's Liquor Control Act, started trial in Campbellton, New Brunswick. Comeau's defence included a constitutional challenge based on section 121 of the British North America Act (1867). On 29 April 2016, Judge Ronald LeBlanc invalidated the trade barriers, in part writing: "That historical context leads to only one conclusion: The Fathers of Confederation wanted to implement free trade as between the provinces of the newly formed Canada."^[29][30] The case was heavily mediated, both on the decision as a victory of Daniel against Goliath,^[31][32][33] and before.^[34] One lady, who happens to be the deputy comment editor for the National Post,^[35] was a pundit, a director of the registered charity which funded Comeau,^[36] and a source of quotations for other journalists.^[32][34][37] At trial, the New Brunswick Liquor control board that it could go out of business if Mr. Comeau was vindicated,^[32] while a professional witness testified for the defence that "two-thirds or more of the customers were from New Brunswick and that 90 per cent" of the floor space in the Listuguj Mi'gmaq First Nation convenience store at which Comeau's beer was purchased "was devoted to beer sales."^[38]

The Crown Attorney appealed the decision directly to the New Brunswick Court of Appeal (the normal path would have been through the Court of Queen's Bench of New Brunswick) on 27 May.^[39] Karen Selick, one of three lawyers retained by Comeau at the instance of the National Post's deputy comments editor, termed the appeal "a farce".^[38] The Crown alleges that LeBlanc J erred in his legal interpretation of Section 121 of the Constitution Act as follows:^[39]

• By interpreting the section to have a meaning contrary to that determined by prior decisions of the Supreme Court of Canada, which are binding on him.
• By concluding without evidence that previous decisions of the Supreme Court were rendered without the benefit of evidence before the trial judge.
• By finding that placing Section 121 in the category of Revenues, Debts, Assets and Taxation in the Constitution Act is of no legal consequence to the determination of its meaning.
• By giving Section 121 a meaning that is internally inconsistent and conflicts with Sections 91, 92, and 94 of the Constitution Act.
• By finding Section 121 was drafted as an absolute free trade provision that constitutionally must be rigorously interpreted as such today.

Notes