LITIGATION

Study 1

Godin v. Star-Key Enterprises Ltd. and Carquest Canada Ltd., (2006) N.B.R. (2d) 180, 2006 NBCA 91 –
Does the two year limitation period for motor vehicle accidents apply to an action against a car repair shop and parts manufacturer where an accident occurs from a failed car part?

The case arose when the ball-joint on the Plaintiff’s van broke, causing her van to come to a sudden stop. The Plaintiff suffered injuries as a result of the van’s sudden stop. The Plaintiff had not filed a claim until more than three years after the accident. The action was based on contract negligence and on the provisions of the Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C–18.1 and the Sale of Goods Act, R.S.N.B. 1973, c. S-1. Star-Key and Carquest brought a summary judgment motion on the basis that the action was statute-barred because of the two year limitation period that applies to actions “for damages arising out of the operation, care, or control of a motor vehicle”. They relied on a decision of the Court of Appeal called Dupuis v. Moncton (City), 2005 NBCA 47 that seemed to support their position that the limitation period had expired. The Court of Queen’s Bench agreed with Star-Key and Carquest and dismissed the action. We brought an appeal of that decision to the New Brunswick Court of Appeal, which reversed the lower court’s decision. The Court of Appeal held that, where the “essence of [the] action is a dispute over an alleged breach of a motor vehicle repair contract”, it will be allowed. However, the Court would not have allowed it had it been a case primarily dealing with a motor vehicle accident that was contrived as a contract or defective products case.

Study 2

Rothesay Residents Association Inc. v. Rothesay Heritage Review Board. 

The Rothesay Common marks the very centre of the Town of Rothesay.  The Common is a picture-perfect park that is surrounded by quaint churches, ancient trees and the historic homes of New Brunswick’s business elite.  The geographic area surrounding the Rothesay Common is designated as a heritage area which, in turn, is protected by a municipal by-law. The by-law prevents the construction of structures which would be inconsistent with the architectural styles predominant in the area.  When the construction of a congregate housing project was proposed inside the heritage area, a group of concerned citizens raised sincere concerns about the style, size and overall impact of the planned building.  At a municipal heritage board hearing, two members of a Church that held an interest in the project participated in the decision-making, in spite of our question of bias.  The board approved the proposed project, but the Court of Appeal ruled in favour of our client on the basis that the participation of the two board members gave rise to an apprehension of bias.  The project did not proceed.

This case offers insight into the importance of procedural fairness in administrative law, and illuminates the complications which can arise if board members do not recognize the possible apprehension of bias which might flow from their relationship (even if minor) to a party engaged in the dispute.

Study 3

South House Restoration Committee v. Rothesay Netherwood School. 

South House is the oldest building on the picturesque campus  of Rothesay Netherwood School (RNS) in Rothesay, New Brunswick.  Rothesay, in turn, is an historic and significant town, that has been, and still is, the home of many of New Brunswick’s most prominent families.  In 2006, RNS proposed to demolish South House, in spite of concerted efforts by a number of the school’s alumni to save the building. On the eve of demolition, we advanced a Notice of Motion for an injunction to prevent the destruction of the landmark, and we succeeded.  After the injunction order was issued, the school and the Restoration Committee arrived at a mutually acceptable resolution of the dispute.

The significance of this case has been that South House continues to grace RNS, the Town of Rothesay and all of New Brunswick as a great example of Gothic Revival architecture.