LAURIE RAY NASON , Plaintiff, - v. –, 2023 NBKB 1

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Laurie Ray Nason v. PNB 2023 NBKB 001 MC-315-2020 January 6, 2023 BETWEEN: LAURIE RAY NASON , Plaintiff, - and – PROVINCE OF NEW BRUNSWICK, Defendant, DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Moncton, New Brunswick DATE OF HEARING: November 1, 2022 DATE OF DECISION: January 6, 2023 APPEARANCES: Michael Dull and Basia Sowinski, on behalf of the Plaintiff J. Nathalie Thibault and Karine Arseneault, on behalf of the Defendant

DeWare, C.J. INTRODUCTION [ 1 ] This decision responds to the Defendant’s, the Province of New Brunswick (hereinafter “the Province”) request for a preliminary determination of a question of law and, if successful, an order for

summary judgement. FACTS [ 2 ] The Plaintiff, Laurie Ray Nason (“Mr. Nason”), was a resident at the Kingsclear Youth Training Centre from August 25, 1971, until June 28, 1972. During his time at Kingsclear, Mr. Nason was sexually abused by one of the guards, Bud Raymond. Mr. Nason never disclosed the sexual abuse, nor did he participate in the compensation system set up for victims of sexual abuse during their time at Kingsclear which became available to victims in the late 1990’s. [ 3 ] In approximately 2018 – 2019, Mr.

Nason was incarcerated at Sleepy Hollow Provincial Correctional Centre in Prince Edward Island. During his time at Sleepy Hollow, Mr. Nason had a discussion with a fellow inmate concerning that person’s history of sexual abuse. According to Mr. Nason, this inmate was explaining the impact his experience of sexual abuse had on the rest of his life. Mr. Nason indicates that following this discussion, he began to make a connection between the sexual abuse he experienced at Kingsclear and his own life struggles. Mr.

Nason started counselling while at Sleepy Hollow and for the first time, started to talk about the sexual abuse he had experienced as a teenager. [ 4 ] Mr. Nason filed a Notice of Action with statement of claim attached against the Province on May 25, 2020. In this action, Mr. Nason alleges that the sexual abuse perpetrated upon him, while incarcerated as a youth at Kingsclear, has resulted in his poor life outcomes. [ 5 ] The Province filed its Statement of Defense on March 5, 2021. Discovery took place in September 2021. The Province then filed the present motion seeking a determination as to whether or not Mr.

Nason’s action is statute-barred pursuant to the Limitation of Actions Act , SNB 2009, c L-8.5 . ISSUES [ 6 ] In order to rule on the questions raised in the Province’s motion, it is necessary to resolve the following issues: 1) What is the appropriate limitation period in this case? 2) What is the appropriate “discovery” date in the case of Mr. Nason? 3) Does the Province have “vested rights” in a limitation defence before a cause of action arises? 4) Is it appropriate to convert the motion into a motion for

summary judgement? POSITION OF THE PARTIES [ 7 ] The Province takes the position that Mr. Nason’s action must have been filed no later than June 28, 1978, in compliance with the 1952 and 1973 Limitation of Actions Act . The Province suggests that Mr. Nason knew the abuse was occurring during his time at Kingsclear and knew the abuse was wrong. The Province points out that sexual abuse was reported to persons of authority while Mr. Nason was at Kingsclear and therefore he clearly had knowledge of the abuse. The Province maintains that the last day that Mr.

Nason was at Kingsclear was June 28, 1972, and therefore the latest date Mr. Nason could file his action, since he was a minor in 1972, was six years later or on June 28, 1978. [ 8 ] Mr. Nason argues that the Province’s position in this matter disregards completely recognized discovery principles in the context of claims related to childhood sexual abuse. Mr. Nason maintains that a determination of “discoverability” in this case requires critical findings of fact which can only take place following a trial – not in the context of a

summary proceeding. LAW AND ANALYSIS What is the appropriate limitation period in this case? [ 9 ] The provisions of the Limitation of Actions Act have changed significantly since the 1970’s. Further, it must be acknowledged that society’s understanding and recognition of the destructive impact of sexual abuse has evolved over the course of the last several decades. This evolution is reflected in the current provisions for actions involving sexual abuse under the Limitation of Actions Act . There is now no limitation period when it comes to an action which arises out of sexual abuse.

However, it is necessary to consider the legislative provisions that were in place during the time frames pertinent to this matter. [ 10 ] The version of the Act which was in place while Mr. Nason was at Kingsclear was the Limitation of Actions Act , RSNB 1952, c 133 (the 1952 Act ). The pertinent sections of the 1952 Act – sections 4, 9, and 18 read as follows: Action for assault, defamation, etc. 4. No action for assault, battery, wounding, seduction, imprisonment, defamation shall be commenced but within two years after the cause of action arose.

Other actions. 9. No other action shall be commenced but within six years after the cause of action arose. In case of disability of plaintiff. 18. Where a person, entitled to bring an action is at the time the cause of action accrues an infant, mental defective, mentalincompetent or of unsound mind, the period within such action shall be brought shall be six years, or two years from the date whensuch person becomes of full age, or of sound mind, as the case may be, whichever is the longer. [Emphasis Mine] [11] The 1952 Act was repealed in November of 1974.

The revised Act, the Limitation of Actions Act, RSNB 1973, c L-8 containedidentical wording to the 1952 Act. As the 1973 Act maintained the provisions from the 1952 version, and as Mr. Nason was still an“infant” when he left Kingsclear in June of 1972, the Province maintains he had to start his action either within six years from when thecause of action arose or two years from when he obtained the age of majority.

Therefore, the Province suggests the latest possible dateby which the action had to be filed was June 1978. [12] In May of 2010, the new Limitation of Actions Act was proclaimed which significantly altered limitation periods in the contextof sexual assault claims.

In particular, sections 14.1 of the Limitation of Actions Act, SNB 2009, c L-8.5 provides as follows: Trespass to the person, assault or battery 14.1 There is no limitation period in respect of a claim for damages for trespass to the person, assault or battery if the act complainedof is of a sexual nature. [13] The 2009 Act further set out transitional provisions at paragraphs 27 and 27.2 which stated as follows: Transition 27(1) The following

definitions apply in this

section and sections 27.1 and 27.2. “effective date” means the day on which this Act comes into force. (date d’entrée en vigueur) “former limitation period”, with respect to a claim, means the limitation period that applied to the claim before the effective date. (anciendélai de prescription) “new limitation period”, with respect to a claim, means the limitation period established by this Act that applies to the claim. (nouveaudélai de prescription) 27(2) This

section applies to claims that are based on acts or omissions that took place before the effective date. While the Province argues the applicability of these provision in support of their position on the applicable limitation period, thesetransitional provisions were repealed in June of 2021. [14] In responding to the Province’s suggestion, as to the applicability of the various limitation periods, Mr. Nason suggests that theProvince has misconstrued the evidence. Mr. Nason points out that he never reported the sexual abuse to anyone while he was atKingsclear. Mr.

Nason points out that in order for this Court to make a determination of a preliminary question of law pursuant to Rule23.01(1)(a), it will be necessary to make findings of fact, not simply an assessment of the law. Further, Mr. Nason maintains that it is notfeasible to determine when a limitation period may have started to run until the date upon which Mr. Nason “discovered” the cause ofaction is determined. What is the appropriate “discovery” date in the case of Mr. Nason? [15] Mr.

Nason suggests the cause of action in this case only accrued in 2018 – 2019 when he made the connection between thesexual abuse he experienced and the difficulties or damages he has encountered throughout his life. Mr. Nason refers the Court to theSupreme Court of Canada’s comment at paragraph [28] of M.(K.) v. M.(H.), (SCC), [1992] 3 SCR 6 where they state:

28 This principle was later adopted in Central & Eastern Trust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147, where thecourt held that the reasonable discoverability rule was as applicable to cases involving professional negligence as it was to actionsinvolving injury to property.

Le Dain J. thus articulated the general rule, at p. 224: … a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discoveredor ought to have been discovered by the plaintiff by the exercise of reasonable diligence… That essentially mirrors the delayed discovery doctrine developed in the United States, where the rational most often cited is the plaintiffwho is “blamelessly ignorant” of his injury; see Urie v.

Thompson, 337 U.S. 163 (1949). [Emphasis Mine] [16] In their written submissions, the Province acknowledges the important element of “knowledge” of abuse as a cause of action. Atparagraphs 16 and 17 in their pre-hearing brief, the Province states as follows: 16. The Defendant submits that, in order to report abuse, one needs to know that it is, in fact, abuse and that it is wrong. Knowledge thatthis abuse is a cause of action is the key factor in determining when the cause of action arose and/or when the cause of action wasdiscovered. 17. In A.L. v.

Michaud, 2012 NBQB 416 , the Court stated that “…the cause of action arose at the latest at the time the sexualtouching was reported to the police officer investigating the matter. (…)” [17] The seminal question to resolve in this matter is “when” Mr. Nason discovered the existence of the cause of action. Mr. Nasonagain points to the direction provided by the Supreme Court on the issue of discoverability set out in M.(K.) v.

M.(H.) at paragraphs 30and 46: 30 In my view the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisitethat the plaintiff have a substantial awareness of the harm and its likely cause before the limitations period begins to toll. It is atthe moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her causeof action crystallizes.

I am in complete agreement with Professor Des Rosiers that the causal link between fault and damage is animportant fact, essential to the formulation of the right of action, that is so often missing in cases of incest; see "Les recours des victimesd'inceste et d'agression sexuelle" to be published in Legrand, ed., Common law d'un siècle à l'autre (1992). What is more, I am satisfiedthat the weight of scientific evidence establishes that in most cases the victim of incest only comes to an awareness of the connectionbetween fault and damage when she realizes who is truly responsible for her childhood abuse.

Presumptively, that awareness willmaterialize when she receives some form of therapeutic assistance, either professionally or in the general community. I have come to thisconclusion after studying the expert evidence in this case and the American jurisprudence which has wrestled with this problem over thepast decade.

The presumption will, of course, be displaced when the evidence establishes that the victim discovered the harm andits likely cause at some other time. 46 British Columbia's limitations legislation (Limitation Act, R.S.B.C. 1979, c. 236) is very different from the statute before us in theinstant case.

It creates a form of statutory reasonable discoverability test, and I note with interest that this legislation emphasizes theimportance of professional treatment and advice by stating the test (s. 6(3)) as the knowledge of a reasonable person "having taken theappropriate advice". (The meaning of this provision has most recently been considered by British Columbia's Court of Appeal in Levitt v.Carr (1992), (BC CA), 66 B.C.L.R. (2d) 58.) Despite the differences in legislation, the conclusions of Hall J. in Grayv.

Reeves, at p. 309, are worthy of note: . . . it seems to me that the hypothetical reasonable person in the shoes of the plaintiff here would not have been acting sensibly incommencing an action until such a person came to appreciate that a wrong or wrongs that had occasioned significant harm toher wellbeing could be established. This is essentially the test I propose in the instant case. [Emphasis Mine] [18] Mr. Nason appropriately underscores the complex nature of discoverability principles in the context of sexual abuse.

The Courtmust determine not only on when a Plaintiff had knowledge of the wrongdoing but also when the Plaintiff was able to make the causalconnection between the wrongdoing and the alleged harm or damages. Mr. Nason relies upon the guidance set out by the British

Columbia Court of Appeal in B(K.L.) v. British Columbia, 1999 BCCA 210 at paragraph 22 and 23: 22. The precise extent to which the decision will apply to the somewhat different allega​tions made by these plaintiffs, should only bedetermined when they can be related to a concrete set of facts. For instance, La Forest J. enunci​ated at pp.48 and ff. a presumption thatthe nexus between the victim's injuries and incest will be dis​covered only after the victim receives therapy. Whether that aspect of thedecision will apply to non-incestual assaults is not clear.

What is clear is that the court found that the discoverability principle should beapplied generally to cases of abuse against children. La Forest J. stated this conclusion at p.35: In my view the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisitethat the plaintiff have a substantial awareness of the harm and its likely cause before the limitations period begins to toll. It is atthe moment when the incest victim discovers the connection between the harm she has suffered and her childhood history thather cause of action crystallizes.

Reading the judgment as a whole, it becomes clear that the principle was not intended to be limited to incest. 23. The decision in M.(K.) v. M.(H.), supra, may be seen as adding a new element to the discoverability rule. In Kamloops v. Nielsen,supra, and in Central Trust v. Rafuse, supra, it was found that the plain​tiff had no knowledge of one element of the cause of action, i.e.,damage. M.(K.) v.

M.(H.) appears to hold that, even if the plaintiff had some knowledge of both the wrongdoing and the harm, thecause of action crystallized only when she discovers the causal relationship between the two. [Emphasis Mine] [19] The Province argues that sexual abuse of youth at Kingsclear were reported to persons in authority during the time that Mr.Nason was a resident. The Province maintains that Mr. Nason knew the abuse was wrong and knew that it was occurring. Further, theProvince argues that Mr.

Nason admitted at discovery that he has never “forgotten” what happened to him at Kingsclear and that he hasused alcohol as a means to stop thinking about the abuse. The Province suggests that since Mr. Nason was using alcohol to “get theabuse off of his mind”, he was well aware of the negative impact the sexual abuse had on his life. [20] Mr. Nason argues that the Province is asking this Court, in the context of a motion, to make a finding of fact that he had aconcrete understanding of the causal connection between the sexual abuse he encountered at Kingslcear and his poor life outcomes priorto May 2010. Mr.

Nason suggests that the date, when a childhood survivor of sexual abuse is able to understand the causal link betweenthe abuse and subsequent damages, is a factual determination. Mr. Nason maintains that the Province’s argument that his admission tonever forgetting the abuse and drinking alcohol to block these memories is not conclusive evidence that he had made this necessarycausal connection prior to May 2010. Mr. Nason answered questions at discovery explaining his life struggles and his experience atKingsclear. However, Mr.

Nason has consistently stated he only began to connect his life challenges with substance abuse andcriminality, as a consequence of his experience of sexual abuse, following his conversations with another survivor of childhood sexualabuse at Sleepy Hollow in 2018 – 2019. Mr. Nason submits that it was only at this point that he had “discovered the harm” and had the“substantial awareness necessary” to start the clock running on any potential limitation period. Does the Province have “vested rights” in a limitation defence before a cause of action arises? [21] Mr.

Nason refers the Court to section 2(1) of the 2009 Act which states as follows: Application 2(1) Subject to subsection (2), this Act applies to any claim brought after the commencement of this Act, including a claim that is addedto a proceeding commenced before the commencement of this Act. [22] The Province suggests that the provisions set out in the 2009 Act are neither retroactive nor retrospective. The Province submitsthat vested rights cannot be affected unless the intent of the legislation delineating those rights clearly states so be it retrospective orprospective in operation.

The Province relies upon the Supreme Court of Canada’s decision in Martin v. Perrie, (SCC),[1986] 1 S.C.R. 41 which considered a limitation period in the context of an action for medical malpractice. In that case, a one yearlimitation period had been repealed in favour of a six year limitation period. The Plaintiff had not commenced his action within the oneyear limitation period and sought to rely upon the new legislation. [23] The Supreme Court of Canada concluded in Martin v. Perrie that the Plaintiff could not rely upon the new limitation period.

TheSupreme Court commented at paragraph [22] as follows: 22 I adopt the following passage at p. 138, in the reasons for judgment of Thorson J.A., dissenting in the Court of Appeal:

The services performed in this case are an altogether different matter. The right to bring an action in respect of them had become statute-barred long before July 14, 1975, and the defendant in this case had every right to assume that he was "no longer at risk from a staleclaim" in respect of them.

The prescribed one-year period since the services were fully performed having gone by, this defendant, incommon with all other medical practitioners who performed services at a time when the old law was in effect, was thus fully entitled toassume that he could "part with his papers" and "discard any proofs" which might have been taken, and could otherwise "order his affairson the basis that his potential liability has gone". [24] The Province further refers the Court to the Manitoba Court of Appeal’s reasoning in Ciecierski v.

Fenning, 2005 MBCA 52 where they followed the reasoning set out by the Supreme Court in Martin v. Perrie stating at paragraphs 26, 28, 29 and 43: 26 The Martin case has been considered on many occasions since its release in 1986. For the most part, it has been applied with littlehesitation. Thus, for example, in 602533 Ontario Inc. v. Shell Canada Ltd. (1998), (ON CA), 37 O.R. (3d) 504(C.A.), Moldaver J.A., citing Martin, wrote that it is well established that “the passage of a statutory limitation period confers an accruedlegal right on a defendant” (at p. 511).

He continued (ibid.): … [T]he Supreme Court of Canada adopted Lord Brightman’s statement in Yew Bon Tew, [[1983] 1 A.C. 553 (P.C.)], that if a statutoryperiod is repealed or extended after a given limitation period has expired, it cannot have the effect of permitting a plaintiff to sue inrespect of the statute-barred cause of action. (pp. 48-51).

Both the Supreme Court of Canada and the House of Lords characterized thelapse of a statutory limitation period, prior to the commencement of an action, as an “accrued legal right” upon which a defendant couldrely to defeat the claim. 28 In the present case, to apply the amended provisions of the FMA to allow Ms Fenning to bring her application for support would beto revive an action that was barred, which is an application of the legislation that interferes with the vested right of Mr. Ciecierski.

Mr.Ciecierski’s right would have vested the moment the year had expired, and the action was statute-barred in 2000, a year before theamendment. 29 It is presumed that the legislature does not intend legislation to be applied in circumstances where its application would interferewith vested rights. Interference with vested rights is considered objectionable because it worsens the position of individuals by changingthe legal rules on which they relied in arranging their affairs. 43 Limitation periods have traditionally been considered to be vested rights.

There is a presumption against interference withvested rights and it is the rare case in which courts have found the necessary facts to rebut that presumption in the absence of anexpress provision. While those rare cases have generally been found in the family law area, it is with respect to children,paternity and the responsibility for child support that the courts have shown some willingness to rebut the presumption. In casesdealing with common-law spouses, the reliance and certainty element is given greater weight. [Emphasis Mine] [25] Mr.

Nason contests the analysis the Province sets out on the issue of vested rights. Mr. Nason maintains that the 2009 Act appliesto all actions or “any claim brought after the commencement of the Act”. Mr. Nason suggests that the Province’s vested right in alimitation defense can only commence at the time of the accrual of the cause of action. As with his argument concerning discoverability,Mr. Nason points out that his cause of action only arose in 2018 – 2019 when he became aware of the connection between the sexualabuse at Kingsclear and his poor life outcomes.

In these circumstances, the Province did not have a vested right to a limitation perioddefense because the limitation period did not become applicable until the cause of action arose in 2018 – 2019 at which point there wasno longer available a limitation period in the context of claims for sexual abuse. [26] As noted by the Manitoba Court of Appeal in Ciecierski, to the extent that limitation periods can be considered vested rights,there are certain situations where that general presumption is rebuttable.

Cases involving childhood sexual abuse where there aredisputed facts on the issue of “discoverability” of when the cause of action arose would seem to fall within this range of cases where thegeneral presumption of a vested right cannot be applied in a formulaic fashion. Is it appropriate to convert the motion into a motion for

summary judgment? [27] Rule 23.01(1)(

a) of the New Brunswick Rules of Court provides as follows:

23.01 Where Available

(1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (

a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that questionmay dispose of the action, shorten the trial, or result in a substantial saving of costs. [28] Mr. Nason submits that the findings of fact necessary to answer the preliminary question of law in this case is simply notavailable. Mr. Nason points out that there is a dispute between the parties on the material facts of when he became aware of the cause ofaction. Mr. Nason relies upon this Court’s conclusion in Blanchard et al. v.

Caisse Populaire de Shippagan Ltée et al., 2013 NBQB 180at paragraph [45] in support of this assertion: [45] The question of when the limitation period begins to run under the Limitation of Actions Act is a question of fact. Given the verydifferent

interpretations of these facts by the parties, it is a question which must be settled during a trial. In a motion for

summaryjudgment, it is not possible to determine the date on which the cause of action “arose” when there is a dispute between the partiesas to the dates. [Emphasis Mine] [29] The Province asserts Mr. Nason’s submission that his cause of action only arose in 2018 – 2019 is untenable. The Provincesuggests various factors in support of their position: 1) During the time Mr. Nason was at Kingsclear, there were reports of sexual abuse of the young offenders made to the authorities; 2) Mr. Nason knew that he was sexually abused during his time at Kingsclear by Bud Raymond, and he knew sexual abuse was wrong; 3) Mr.

Nason has never forgotten the sexual abuse he experienced at Kingsclear; 4) Mr. Nason acknowledges he has used alcohol throughout his life as a means to “stop thinking about it”; 5) Mr. Nason has had substance abuse problems; and 6) Mr. Nason has never been declared unfit by a psychiatrist. [30] Mr. Nason steadfastly maintains that he never made the connection between the struggles he experienced in his life and thesexual abuse at Kingsclear until 2018 – 2019. In support of his position, Mr.

Nason points out the following: 1) He never reported the sexual abuse he experienced while he was at Kingsclear; 2) He never spoke to anyone about the sexual abuse he experienced at Kingslcear other than to his wife many years later; 3) He did not participate in the Miller Inquiry; 4) He did not seek financial compensation as a survivor of sexual abuse even though he knew it was available; 5) He has only a grade 5 education; and 6) Prior to his incarceration at Sleepy Hollow in 2018 – 2019, he had never received or requested therapy or treatment for problems as aresult of the sexual abuse he experienced at Kingsclear. [31] In the present matter, there is a dispute as to the date that Mr.

Nason did “discover” the causal connection between his experienceof sexual abuse and the damages or consequences these experiences had on his life. The Province maintains for the reasons argued thatMr. Nason had to have known prior to May 2010 of the connection between the sexual abuse and his struggles. Mr. Nason submits heonly discovered this connection in 2018 or 2019. In order to accept the Province’s submission, this Court would need to determine basedon the strength of a written evidentiary record that Mr. Nason’s statements are not credible.

In the absence of viva voce evidence and afull hearing to determine these facts, I cannot see how the Court could make such a necessary credibility finding. [32] Mr. Nason maintains the hotly disputed concept of discoverability in this case can only be determined following a trial. In theabsence of certainty surrounding necessary finding of facts, a resulting order for

summary judgment is not available. Mr. Nason refersthe Court to Justice Drapeau’s comments in Morrow v. Aviva Canada Inc., 2004 NBCA 100 at paragraph 10 where he states: A.

Summary Judgment [10]

Summary judgment is appropriate whenever there is “no reason for doubt as to what the judgment of the court should beif the matter proceeds to trial”: Ripulone v. Pontecorvo (1989), (NB CA), 104 N.B.R. (2d) 56 at para. 13 (C.A.) and

Cannon v. Lange et al. (1998), (NB CA), 203 N.B.R. (2d) 121 (C.A.). That pivotal question stands to bedetermined on the basis of the issues as defined by the pleadings, any relevant admissions in the record and the admissibleevidence. Our Court has repeatedly endorsed that elementary proposition, which responding parties ignore at their peril. [Emphasis Mine] CONCLUSION AND DISPOSITION [33] In all of the circumstances of this case and for the reasons previously cited, the Province’s motion is denied. The necessaryfindings of fact which must be made in order to correctly identify the appropriate limitation period in this case cannot be made in thecontext of a

summary proceeding. Mr. Nason’s submission that he only became aware or discovered the cause of action in 2018 – 2019must be determined at trial. It is possible that the Province’s position that the limitation period accrued long before May 2010 will carrythe day following viva voce evidence and the cross-examination of Mr. Nason. However, those determinations will require the trial judgeto resolve contested facts and to evaluate the witnesses, in particular Mr. Nason’s, credibility. This process is simply not feasible on thestrength of a written record alone.

As the limitation period cannot be determined, the Court is unable to rule on the question of lawsubmitted by the Province pursuant to Rule 23.01(1)(a). Finally,

summary judgment cannot be considered as the requisite question of lawwhich forms the basis for the request for

summary judgment cannot be adjudicated upon. [34] The Province’s defense pursuant to the applicable Limitation of Actions Act must be determined at trial. The Province’s motionis dismissed with cost payable to Mr. Nason of $2,500.00. DATED at Moncton, N.B., this 6th day of January 2023. _______________________________________ Tracey K. DeWare Chief Justice of the Court of King’s Benchof New Brunswick