2022 NBCA 60, 2022 NBCA 60

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 18-22-CA PETER GAUDET and ADAM GAUDET APPELLANTS PETER GAUDET et ADAM GAUDET APPELANTS - and - - et - THE MINISTER OF FISHERIES AND OCEANSas represented by the Attorney General for Canada,Jim Jones, Rheal Vienneau, Janet Smith, CharlesGaudet, and Isabelle Elliott RESPONDENTS LE MINISTRE DES PÊCHES ET DES OCÉANSreprésenté par le PROCUREUR GÉNÉRAL DUCANADA, JIM JONES, RHEAL VIENNEAU,JANET SMITH, CHARLES GAUDET, etISABELLE ELLIOTT INTIMÉS Gaudet and Gaudet v. Minister of Fisheries andOceans et al., 2022 NBCA 60 Gaudet et Gaudet c.

Ministre des Pêches et desOcéans et autre, 2022 NBCA 60 CORAM: The Honourable Justice Drapeau The Honourable Justice Quigg The Honourable Justice LeBlanc CORAM : l’honorable juge Drapeau l’honorable juge Quigg l’honorable juge LeBlanc Appeal from a decision of the Court of Queen’sBench: February 9, 2022 Appel d’une décision de la Cour du Banc de laReine : le 9 février 2022 History of Case: Historique de la cause : Decision under appeal: 2022 NBQB 33 Décision frappée d’appel : 2022 NBQB 33 , 2022 NBBR 33 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 12, 2022 Appel entendu : le 12 octobre 2022 Judgment rendered: October 12, 2022 Jugement rendu : le 12 octobre 2022 Counsel at hearing: For the appellants: Erica C. Brown and Christian E. Michaud, K.C. For the respondents: Corinne Bedford and Heidi Collicutt Avocats à l’audience : Pour les appelants : Erica C. Brown et Christian E. Michaud, c.r. Pour les intimés : Corinne Bedford et Heidi Collicutt THE COURT The appeal against

summary judgment based on s. 5(1) (

a) of the Limitation of Actions Act (two years from discovery of the claim) is dismissed. The appellants will pay one set of costs on appeal in the amount of $5,000 to the Attorney General of Canada. LA COUR L’appel contre un jugement

sommaire fondé sur l’ al. 5(1)

a) de la

Loi sur la prescription (deux ans à compter du jour où sont découverts les faits ayant donné naissance à la réclamation) est rejetée. Les appelants paieront une masse de dépens en appel au montant de 5 000 $ au Procureur général du Canada. The following is the judgment delivered by THE COURT (Orally) I. Introduction and Overview [ 1 ] This is an appeal from a

summary judgment under Rule 22 of the Rules of Court dismissing the appellants’ action for special damages in excess of $3,800,000, as well as pecuniary and non-pecuniary general damages, allegedly arising from multifarious wrongdoing by the respondents in connection with the appellants’ attempts to secure various fishing licences between early 1999 and August 2010. The wrongdoing in question would include taking account of irrelevant considerations, breach of s. 6 of the Charter (mobility rights), civil fraud, bad faith and unfair treatment, The motion judge determined the action was barred by s. 5(1) (

a) of Limitation of Actions Act , S.N.B. 2009, c. L-8.5 . In addition to granting

summary judgment, the judge, admittedly with some hesitation, allowed the respondents’ application to convert their motion into a motion for judgment under Rule 37.10(a): Gaudet v. New

Brunswick (Minister of Fisheries and Oceans), 2022 NBQB 33 , [2022] N.B.J. No. 69 (QL) . Two events are of particular significance in understanding the case in the Court of King’s Bench and on appeal. [ 2 ] First, in late 2008, the appellants lodged an appeal with the Atlantic Fisheries Licence Appeal Board against the refusal by the Department of Fisheries and Oceans to approve their application for the reissuance in their names of fishing licences “purchased” in 1998 from the holder (Dugas).

At the time, a licences-related action for damages initiated by the appellants against Dugas was pending in the Court of King’s Bench. Following a hearing in April 2009, the Board recommended to the Minister the licence status quo remain until the dispute between the appellants and Dugas was resolved in court. In March 2010, the Minister advised the appellants that, after considering all relevant information, including the Board’s recommendation, he had decided not to issue replacement licences in their name.

Neither the Board’s recommendation nor the Minister’s decision was challenged on judicial review. [ 3 ] Second, in August 2010, the Department refused the appellants’ request to reissue, in their name, licences held by another fisher (Landry). In October 2010, the appellants filed a Notice of Application in Federal Court for judicial review of that decision, claiming relief on grounds and evidence that, in essence, constitute the basis for the underlying action in relation to both these licences and the Dugas licences. The application was discontinued in March 2011.

At that time, counsel for the appellants advised the Department that the discontinuance was without prejudice to the appellants’ right to commence an action in damages against the Department for the wrongdoing alleged in the Notice of Application. That action was commenced six years later, in April 2017. [ 4 ] The motion judge determined

summary judgment was appropriate as, in his view, the evidence established there was no genuine issue requiring a trial of the action. The judge came to this conclusion on the grounds that the action was barred by s. 5(1)(a). Section 5(1) reads as follows: 5(1) Unless otherwise provided in this Act, no claim shall be brought after the earlier of (

a) two years from the day on which the claim is discovered, and (

b) fifteen years from the day on which the act or omission on which the claim is based occurred. 5(1) Sauf disposition contraire de la présente loi, toute réclamation se prescrit par celui des délais ci-dessous qui expire le premier :

a) deux ans à compter du jour où sont découverts les faits y ayant donné naissance;

b) quinze ans à compter du jour où a eu lieu l’acte ou l’omission sur lequel elle est fondée. II. Analysis and Decision [ 5 ] We conclude the judge did not commit reversible error in finding the action is barred by s. 5(1) (a). The judge rightly found Grant Thornton LLP v. New Brunswick , 2021 SCC 31 , [2021] S.C.J. No. 31 (QL) , settled “the degree of knowledge required to discover a claim”: Gaudet v. New Brunswick (Minister of Fisheries and Oceans), at para. 53.

Contrary to the appellants’ submission, Grant Thornton is not distinguishable on the facts and the Supreme Court decision in that case is the controlling authority with respect to the application of s. 5(1) (a). As the motion judge correctly observed, under the Grant Thornton framework, a claim is discovered for s. 5(1) (

a) purposes when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s

part can be drawn. [ 6 ] The judge found, on the evidence produced for his consideration, that the appellants knew all the material facts relevant to their action against the respondents when they filed the Notice of Application for judicial review in 2010. This finding of fact is not the product of any palpable and overriding error in assessing the record.

As mentioned, the appellants commenced the underlying action against the respondents in April 2017, which was, on the judge’s findings of fact, after the expiry of the two-year limitation period under s. 5(1) (a). [ 7 ] Moreover, we find the motion judge did not commit reversible error in concluding there was no evidence, after 2010, of a continuous act or omission, within the meaning of s. 6, which reads as follow:

6. If a claim is based on a continuous act or omission, the act or omission is deemed for the purposes of calculating the limitation periods in

section 5 to be a separate act or omission on each day it continues. 6. L’acte ou l’omission sur lequel est fondée une réclamation qui se poursuit sans interruption est réputé, aux fins du calcul des délais de prescription impartis à l’article 5, constituer un acte ou une omission distinct pour chacun des jours au cours desquels il se poursuit. The record shows no application by the appellants for the issuance or re-issuance of fishing licences in their name was refused by the Department after the discontinuance of the application for judicial review in 2010.

Relatedly, we agree with the judge’s observation that the fact “damages continued to accrue as the years passed with [the appellants] being denied the profits from the [Dugas] licences” does not give rise to a continuous act or omission within the meaning of s. 6: Gaudet v. New Brunswick (Minister of Fisheries and Oceans) , para. 67. [ 8 ] As well, we are satisfied the motion judge did not misunderstand the relevance of the proceedings before the Licence Appeal Board. It is neither a statutory board nor a judicial tribunal.

The Board does no more than make non-binding recommendations to the Minister on licencing issues, a mandate that, admittedly, includes a consideration of whether an applicant for a licence has been treated fairly. Recall that, in March 2010, the Minister dismissed the appellants’ application for reissuance of the Dugas licences in their name, after considering the Board’s recommendation in favour of maintaining the status quo. With its recommendation, the Board’s mandate was exhausted.

Contrary to the appellants’ contention, proceedings before the Board were not adjourned, pending resolution of the civil action between the appellants and Dugas and, in any event, the Minister’s decision to refuse the sought-after re-issuance rendered moot the issue of fairness insofar as the Board was concerned. Moreover, there is no basis in law for the appellants’ position that they could not commence a civil action in damages against the respondents before exhausting internal departmental remedies regarding their complaint of bureaucratic unfairness.

This argument, which was not raised before the motion judge, is bereft of merit. [ 9 ] That is likewise the case for the submission that the respondents are estopped from relying on s. 5(1) (

a) because proceedings before the Board remained pending after the hearing in 2010 and until the civil proceedings between the appellants and Dugas came to an end with the dismissal of Dugas’ application for leave to appeal to the Supreme Court of Canada on February 2, 2017. As noted, the Board’s mandate was spent once it made its recommendation in favour of the licence status quo to the Minister.

Moreover, the Minister’s unequivocal dismissal of the appellants’ request for re-issuance of the licences in their name settled any debate on the issue of bureaucratic unfairness insofar as internal processes were concerned. Nor is there evidence that “actions taken or assurances given by the [respondents or their agents] in relation to the resolution of the claim before the expiry of the limitation period caused the [appellants] to reasonably believe that the claim would be resolved by agreement and therefore to delay the claim”: s. 22.

Finally, and assuming, without deciding, that an estoppel of the kind alleged by the appellants could arise, in circumstances other than those specified in s. 22, there is no substantiating evidence of any waiver, inducement or misleading representation, and detrimental reliance. [ 10 ] The appellants also contend the decision under appeal must be set aside because the judge failed to consider s. 16, which deals with willful concealment. It reads as follows:

16 If a defendant wilfully conceals from a claimant the existence of a claim, the following rules apply: (

a) the defendant cannot rely on the expiry of a limitation period referred to in paragraph 5(1)(b), subparagraph 9(1)(b)(ii) or paragraph 11(b), 14(1)(

b) or 14(2)(

b) as a defence to the claim, and (

b) in the case of a claim referred to in

section 8, subsection 8.1(2), (3) or (4), subsection 12(2) or (4) or

section 13, the claim shall not be brought after the later of (

i) two years from the day the claimant first knows or ought reasonably to know that the claim exists, and (ii) the period described in

section 8, subsection 8.1(2), (3) or (4), subsection 12(2) or (4) or

section 13, as the case may be. 16 Les règles qui suivent s’appliquent dans le cas où le défendeur a dissimulé délibérément au réclamant les faits qui donnent naissance à une réclamation :

a) le défendeur ne peut opposer la prescription prévue à l’alinéa 5(1)b), au sous- alinéa 9(1)b)(ii) ou à l’alinéa 11b), 14(1)

b) ou 14(2)b);

b) s’agissant d’une réclamation visée à l’article 8, au paragraphe 8.1(2), (3) ou (4), au paragraphe 8.1(2), (3) ou (4), au paragraphe 12(2) ou (4) ou à l’article 13, elle se prescrit par celui des délais ci-dessous qui expire le dernier : (

i) deux ans à compter du jour où le réclamant a appris ou aurait dû normalement apprendre les faits y donnant naissance; (ii) le délai imparti à l’article 8, au paragraphe 12(2) ou (4) ou à l’article 13, selon le cas. There is no evidence the respondents concealed the existence of the claim put forward in the underlying action. The evidence shows the appellants were, at all material times, aware of the facts upon which their claim is based. At any rate, the judge found the action was barred by s. 5(1) (a): Gaudet v. New Brunswick (Minister of Fisheries and Oceans) , at para.

Section 16 has no application to s. 5(1) (a): Province of New Brunswick v. Grant Thornton , 2020 NBCA 18 , [2020] N.B.J. No. 70 (QL) , at para. 30 (reversed by SCC on other grounds 2021 SCC 31 , [2021] S.C.J. No. 31 (QL) ). [ 11 ] On a motion for

summary judgment, both sides must put their best foot forward and, in the absence of pertinent admissions in the adverse party’s pleadings, submissions or affidavit evidence, each side must produce cogent evidence in support of their case for or against judgment: Laforge v. Senechal Estate , 2001 NBCA 35 , [2001] N.B.J. No. 120 (QL) , at para. 25 . The appellants did not adduce or point to any evidence or admissions tending to substantiate their contention that there was a genuine issue requiring a trial. Conversely, the respondents made the case for a finding that there was no genuine issue requiring a trial.

III. Conclusion and Disposition [ 12 ] In sum, there is no principled basis for intervention by the Court. The appeal is, therefore, dismissed. The appellants will pay one set of costs on appeal in the amount of $5,000 to the Attorney General of Canada. We close with a practice note: the motion judge erred in bringing Rule 37.10(

a) into play. That Rule has no application to proceedings under Rule 22. That said, the error was harmless, having regard to the entry of

summary judgment.