Eastpre Feeds Ltd. v. Irving Oil (2012), 391 N.B.R.(2d) 322 (TD);
391 R.N.-B.(2e) 322; 1013 A.P.R. 322
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Temp. Cite: [2012] N.B.R.(2d) TBEd. AU.001
Renvoi temp.: [2012] N.B.R.(2d) TBEd. AU.001
Eastpre Feeds Ltd. (plaintiff) v. Irving Oil Company Limited and Irving Oil Limited (defendants)
And Between: Marine Extract Ltd. (plaintiff) v. Irving Oil Company Limited and Irving Oil Limited (defendants)
(MC/793/02; MC/810/03; 2012 NBQB 254; 2012 NBBR 254)
Indexed As: Eastpre Feeds Ltd. v. Irving Oil Co. et al.
Répertorié: Eastpre Feeds Ltd. v. Irving Oil Co. et al.
New Brunswick Court of Queen’s Bench
Trial Division
Judicial District of Moncton
Rideout, J.
August 9, 2012.
Summary:
Résumé:
The two plaintiffs in these two actions both sued the defendants Irving Oil Company, Limited and Irving Oil Limited (Irving) concerning the alleged contamination of their property. Both plaintiffs brought motions seeking, inter alia, to add the Ville de Shippagan as a defendant on grounds that it was also responsible for the contamination of their property.
The New Brunswick Court of Queen’s Bench, Trial Division, granted the motions.
Limitation of Actions – Topic 208
Practice – Time for determination of compliance with limitation period – [See
Practice – Topic 666
].
Practice – Topic 665
Parties – Adding or substituting parties – Adding or substituting defendants – Considerations – The New Brunswick Court of Queen’s Bench, Trial Division, discussed the test for adding defendants to an action and referred to case law – The court stated that “As I read these and other authorities I believe that the issue of direct interest has been enlarged and there is a further factor or test namely; ‘just and convenient’. The authorities suggest that there can be an indirect interest and the Courts should be reluctant to interfere with the Court’s discretion to add a party or amend a pleading by restricting this discretion to only direct interests. As well, the test of ‘just and convenient’ respects this discretion. Consequently I believe ‘just and convenient’ are the only factors to be considered because issues of delay, prejudice and special circumstances are within the ambit of ‘just and convenient’.” – See paragraphs 15 to 22.
Practice – Topic 666
Parties – Adding or substituting parties – Adding or substituting defendants – Application of limitation periods – The two plaintiffs in these two actions both sued the defendants Irving Oil Company, Limited and Irving Oil Limited (Irving) concerning the alleged contamination of their property – Both plaintiffs brought motions to add the Ville de Shippagan (Shippagan) as a defendant on grounds that it was also responsible for the contamination of their property – Shippagan resisted the motions on the ground, inter alia, that the claim against it was barred by the Limitations of Actions Act – The New Brunswick Court of Queen’s Bench, Trial Division, held that the Limitations of Actions Act issue was something to be dealt with in a defence and not, in the circumstances of this case, on a motion to add a party – See paragraphs 12, 13 and 25.
Practice – Topic 672
Parties – Adding or substituting parties – Adding or substituting defendants – Circumstances when allowed – The two plaintiffs in these two actions both sued the defendants Irving Oil Company, Limited and Irving Oil Limited (Irving) concerning the alleged contamination of their property – Both plaintiffs brought motions seeking, inter alia, to add the Ville de Shippagan (Shippagan) as a defendant on grounds that it was also responsible for the contamination of their property – The New Brunswick Court of Queen’s Bench, Trial Division, granted the motions – It was important to have all potential parties before the court so that all issues could be determined in a trial or preliminary proceeding – In addition, there were remedies available to Shippagan during the process leading up to a trial as well as costs at its conclusion – Delay did not appear to be a factor – The court held that it was “just and convenient” to have any and all potential parties before the court in one action – See paragraphs 21 to 25.
Prescription – Cote 208
Procédure – Moment pour déterminer la conformité au délai de prescription – [Voir
Limitation of Actions – Topic 208
].
Procédure – Cote 665
Parties – Addition ou substitution de parties – Défendeurs – Facteurs considérés – [Voir
Practice – Topic 665
].
Procédure – Cote 666
Parties – Addition ou substitution de parties – Addition ou substitution de défendeurs – Application de délais de prescription – [Voir
Practice – Topic 666
].
Procédure – Cote 672
Parties – Addition ou substitution de parties – Addition ou substitution de défendeurs – Circonstances y donnant droit – [Voir
Practice – Topic 672
].
Cases Noticed:
Lawson v. Poirier (1995), 159 N.B.R.(2d) 212; 409 A.P.R. 212 (T.D.), refd to. [para. 16].
Letvad v. Fenwick – see/voir Letvad v. Finley et al.
Letvad v. Finley et al. (2000), 146 B.C.A.C. 49; 239 W.A.C. 49 (C.A.), refd to. [para. 17].
Tigger Games Ltd. v. Atlantic Lottery Corp. et al. (2003), 268 N.B.R.(2d) 85; 704 A.P.R. 85 (T.D.), refd to. [para. 18].
O’Brien v. Stephen et al. (1993), 136 N.B.R.(2d) 185; 347 A.P.R. 185 (T.D.), refd to. [para. 20].
Counsel:
Avocats:
Dale T. Briggs, on behalf of both plaintiffs;
J. Paul Harquail, on behalf of the defendants;
Marc Cormier, on behalf of the Ville de Shippagan.
These motions were heard on July 30, 2012, by Rideout, J., of the New Brunswick Court of Queen’s Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on August 9, 2012.
