2013 NBCA 25, 2013 NBCA 25

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 36-12-CA ANNA MARIE KINSELLA and JOHN KINSELLA (Respondents) APPELLANTS ANNA MARIE KINSELLA et JOHN KINSELLA (Intimé

s) APPELANTS - and - - et - NEW BRUNSWICK POWER DISTRIBUTION AND CUSTOMER SERVICE CORPORATION andBELL ALIANT REGIONAL COMMUNICATIONS,LIMITED PARTNERSHIP (Applicants) RESPONDENTS CORPORATION DE DISTRIBUTION ET SERVICEÀ LA CLIENTÈLE ÉNERGIE NOUVEAU-BRUNSWICK et BELL ALIANTCOMMUNICATIONS RÉGIONALES, SOCIÉTÉ ENCOMMANDITE (Requérantes) INTIMÉES Kinsella v. New Brunswick Power Distribution andCustomer Service Corporation et al., 2013 NBCA 25 Kinsella c.

Corporation de distribution et service à laclientèle Énergie Nouveau-Brunswick et autre, 2013NBCA 25 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: March 2, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 2 mars 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 76 Décision frappée d’appel : 2012 NBQB 76 , 2012 NBBR 76 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: October 18, 2012 Appel entendu : Le 18 octobre 2012

Judgment rendered: March 28, 2013 Jugement rendu : Le 28 mars 2013 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Turnbull The Honourable Justice Robertson Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Robertson Counsel at hearing: For the appellants: Andrew Rouse For the respondents: Richard G. Petrie and Nicholas N. Russon Avocats à l’audience : Pour les appelants : Andrew Rouse Pour les intimées : Richard G. Petrie et Nicholas N.

Russon THE COURT The appeal is dismissed, with one set of costs in the amount of $1,500 payable to the respondents. LA COUR Déboute les appelants. Elle les condamne à verser aux intimées, en une seule masse, des dépens de 1 500 $. The judgment of the Court was delivered by GREEN J.A. I. Introduction [ 1 ] The appellants, a mother and her son, reside at 875 Grandame Street in the City of Fredericton. The respondents are New Brunswick’s publically-owned electric power utility, and a telecommunications company.

Both respondents enjoy a right-of-way over the subject property, and the power utility also enjoys a statutory right of access. A dispute arose between the parties with respect to the cutting of trees. The respondents eventually made application to the New Brunswick Court of Queen’s Bench, Trial Division, pursuant to Rules 16.04(e), 16.04(f), and 16.04(

i) of the Rules of Court . They sought to have the Court: interpret the right-of-way agreement and statutory provision referenced above; grant a declaration with respect to their rights in relation to the subject property; and, grant an injunction preventing the appellants from interfering with the respondents in the exercise of those rights. The application judge considered the evidence before her and granted the application as requested. The appellants seek to have the resulting order set aside, and a new hearing or trial. For the reasons which follow, I would dismiss the appeal. II. Background [ 2 ] On March 17, 1966, a local developer entered into a joint Sub-Division Right-of-Way

Agreement with Maritime Electric Co., Ltd. and The New Brunswick Telephone Company, Limited (the corporate predecessors of the respondents). The pertinent sections of the agreement read as follows: Received of The Maritime Electric Co. Ltd. and The New Brunswick Telephone Company Limited, herein referred to as the Grantees, One Dollar, in consideration of which the undersigned hereby grants and conveys unto the said grantees, their successors and assigns, the respective right, privilege, easement and authority to construct, reconstruct, operate and maintain, as for The Maritime Electric Co.

Ltd. lines for the distribution of electricity forming part of its continuous system, as for The New Brunswick Telephone Company Limited, lines of telecommunications, said lines consisting of such poles, wires, cables, conduits, guys, anchors and other fixtures and appurtenances as the grantees may from time to time require, upon, over and under the property which the undersigned owns or in which the undersigned has any interest in the City of Fredericton County of York and Province of New Brunswick, described as follows: Lands located on Lots fronting on Grandame Street and Gregg Court, in the City of Fredericton aforesaid.

Said lines to be located on a Ten (10) foot wide strip of land as shown colored in red in the plan hereto annexed. Shown by dotted lines and indicated by the words “10’ Utility Easement”.

And upon, along and/or under the roads, streets or highways crossing and/or adjoining the said property with for each of the grantees the following rights: Of ingress and egress over and across the lands of the undersigned to and from said lines for the purpose of exercising the rights herein granted, to cut, keep out, and remove all trees and brush within a distance of five feet of said lines, and the right to permit the attachment of and/or carry in conduit, wires and cables of any other company, to have and to hold unto and to the use of the grantees, their successors and assigns forever […] [ 3 ] The appellant, Anna Marie Kinsella, is the owner of a property which is subject to the above noted right-of-way agreement.

She does not dispute the respondents have this right-of-way. [ 4 ] Problems arose in May 2011 with respect to the respondents exercising their right to enter upon the subject property. Employees of the respondents attempted to access the right-of-way, and were refused access by one or both of the appellants. Meetings were held and correspondence was exchanged between the parties, to no avail. The situation deteriorated to the point at which the respondents filed their Notice of Application dated January 3, 2012. III.

Issues [ 5 ] As grounds of appeal, the appellants allege the following errors by the application judge: 1. Deciding the case by way of an application pursuant to Rule 16.04, instead of converting the matter into an action as requested by the appellants; 2. Issuing a permanent injunction against the appellants, and; 3. Refusing to consider whether the respondents were subject to a “reasonableness requirement” under the statutory provision. IV. Law and Analysis A. The Application Pursuant to Rule 16.04 [ 6 ] The provisions of Rule 16.04 relevant to this appeal are as follows:

16.04 By Notice of Application Where

an Act or rule authorizes an application or motion to the court without requiring the institution of an action, a Notice of Application (Form 16D) may be used and, in addition thereto, a proceeding may be so commenced where the relief claimed is […] (

e) for a determination of rights which depend upon the

interpretation of a deed, will, contract or other instrument, or upon the

interpretation of a statute, order-in-council, regulation, municipal by-law or resolution, (

f) for the declaration of a beneficial interest in or charge upon land including the nature and extent thereof, or for settling the priority of interests or charges, […] (

i) for an injunction, mandatory order, declaration, the appointment of a receiver, or other consequential relief ancillary to relief claimed in a proceeding properly commenced by a Notice of Application[.] 16.04 Par avis de requête Lorsqu’une loi ou qu’une règle autorise la présentation d’une requête ou d’une motion à la cour sans nécessité d’intenter une action, un avis de requête (formule 16D) peut être utilisé. L’instance peut également être introduite de cette manière quand il s’agit de demander […]

e) la précision des droits qui dépendent de l’interprétation d’un acte de transfert, d’un testament, d’un contrat ou de quelque autre instrument, ou de l’interprétation d’une loi, d’un décret en conseil, d’un règlement, d’un arrêté municipal ou d’une résolution;

f) la déclaration d’un droit à

titre bénéficiaire sur un bien-fonds ou d’une charge grevant un bien-fonds, y compris la nature et l’étendue de ce droit ou de cette charge ou la collocation des titulaires des droits ou des charges; […]

i) une injonction, une ordonnance mandatoire, une déclaration, la nomination d’un séquestre ou toute autre mesure accessoire aux mesures de redressement revendiquées dans une instance introduite régulièrement par avis de requête[.] [ 7 ] Rule 38.09(

b) is also relied upon by the appellants:

38.09 Disposition of Application On the hearing of an application, the courtmay […] (

b) where it is satisfied that there is asubstantial dispute of fact, direct that theapplication proceed to trial or direct the trialof a particular issue or issues and, in eithercase, give such directions and impose suchterms as may be just, subject to which theproceeding shall thereafter be treated as anaction. 38.09 Décision À l’audition d’une requête, la cour peut […]

b) si elle constate qu’il y a une contestationimportante des faits, prescrire l’instruction dela requête ou l’instruction d’une ou deplusieurs questions soulevées et, dans l’un oul’autre cas, donner les directives et imposerles conditions qu’elle estime justes, aprèsquoi l’instance sera conduite comme uneaction. [8] The appellants challenged the appropriateness of Rule 16.04 before the application judge,arguing there was a substantial dispute of fact. They raise the same issue on appeal. This Court has consistently held Rule 16.04 is notavailable to parties when there exists a substantial dispute of fact.

In Chiasson v. Region 6 Hospital Corporation, 2006 NBCA 30, 297N.B.R. (2d) 311, the Court states: In our view, Mr. Chiasson’s argument is without merit. The law is clear. Rule 16.04(

j) is only available when there is no substantialdispute of fact. (See MacDonald v. Apex Industries Ltd. et al. (1992), (NB CA), 126 N.B.R. (2d) 427 (C.A.); Steevesv. Moncton (City) et al. (2003), 2003 NBQB 71 , 260 N.B.R. (2d) 383 (Q.B.) and Aitken et al. v. Beaverbrook Art Gallery(2004), 2004 NBQB 388 , 280 N.B.R. (2d) 398 (Q.B.)). [para. 7] [9] In Veno v. United General Insurance Corporation, 2008 NBCA 39, 330 N.B.R. (2d) 237Drapeau C.J.N.B. again considered the question of the proper use of Rule 16.04: Rule 16.04 provides, inter alia, that a proceeding may be commenced by a Notice of Application where the relief claimed is: adetermination of rights that depend upon the

interpretation of a contract, statute or regulation (sub-rule (e)); a declaration or otherconsequential relief ancillary to relief claimed in a proceeding properly commenced by a Notice of Application (sub-rule (i)); and inrespect of any other matter where it is unlikely there will be a substantial dispute of fact (sub-rule (j)). It is axiomatic that anyapplication falling within Rule 16.04(

i) stands to be converted into an ordinary action (see Chiasson v. Region 6 Hospital Corp. (2006),297 N.B.R. (2d) 311, [2006] N.B.J. No. 120 (QL), 2006 NBCA 30). That is likewise the case for virtually all applications under the othersub-rules, where material facts are genuinely in dispute (see Cornerstone Baptist Church Inc. v. Peters, [2007] N.B.J. No. 504 (QL),2008 NBQB 69, Glennie J.). [para. 74] [Emphasis in original.] [10] Turnbull J.A., writing for the Court in Fredericton (City) v. Manship, 2001 NBCA 55, 238N.B.R. (2d) 86, leave to appeal refused [2001] S.C.C.A.

No. 389 (QL), considered the use of Rule 38.09: An exercise of judicial discretion is required to direct, under Rule 38.09(b), that a Rule 16.04(

e) application proceed to trial where theapplication judge "is satisfied that there is a substantial dispute of fact." The appellants' argument to support their claim that theapplication judge erred in not directing a trial is based, not on a substantial dispute of fact, but on the essential evidence that they believeis necessary to prove whether there was an impermissible use of 560 Queen Street. They argue there must be evidence of nudity orpartial nudity. Whether such evidence is essential to prove impermissible use is a question of law. Thus, since there was no substantialdispute of fact, the application judge was correct to refuse to direct a trial. [para. 12]

[ 11 ] The application judge considered the argument advanced by the appellants, and their request to have the proceeding converted to a trial. She held as follows: The affidavits do contain conflicting evidence as to what was said or done during various meetings between the parties. These conflicts are not material. The fact that one or more of the participants may have been rude is not relevant to the legal issue before the Court. Counsel for the Kinsellas submits that the fact in dispute is whether the trees have to be cut and that “it can be controlled by you”, that is, the Court. I do not agree.

Rule 16.04 gives the Court jurisdiction to interpret written documents and make declarations of rights. It does not give the Court a supervisory role with respect to those rights. I find there is no material conflict of fact. More particularly, the following facts have been established: 1) NB Power and Bell Aliant have a right of way on land owned by Mrs. Kinsella; 2) Employees of NB Power and Bell Aliant have attempted to access the right of way; 3) The employees have been prevented from accessing the right of way by the Kinsellas.

This is not a situation which requires a trial and the motion asking that it be converted to a trial is therefore dismissed. [paras. 10-13] [ 12 ] On appeal, the appellants argued that, had the application judge understood why they objected to the respondents entering upon their property, she may have come to a different conclusion. They further argued a trial would have afforded the appellants the right to present evidence on what was appropriate with respect to the cutting of vegetation.

This harkens back to the observation made by the application judge, namely that the appellants were asking the court to determine what should be cut on their property and what should not by exercising a “supervisory role” over the respondents’ exercise of their rights. [ 13 ] In proceeding by way of a Notice of Application, the respondents were seeking a determination of their rights, which required the

interpretation of both the right-of-way agreement and statutory provisions, and for an injunction which would allow them to exercise those rights unimpeded by the appellants. In my opinion, this situation ideally lent itself to the process provided for by Rule 16.04. The application judge was correct in coming to this conclusion, and in determining the absence of a substantial dispute of fact. In order to trigger the exercise of judicial discretion under Rule 38.09, a dispute over facts must not only be substantial, it must also be relevant to the legal issues before the court.

There being no error on the part of the application judge, this ground of appeal must fail. B. Issuance of a Permanent Injunction [ 14 ] The appellants argue the application judge should have declined to order a permanent injunction because of the lack of a sufficient factual basis to make such an order. On this ground of appeal, they return to the assertion a trial was necessary, in this context in order to have an adequate evidentiary foundation for even considering the issuance of a permanent injunction.

[ 15 ] The key segment of the application judge’s decision relating to the injunction reads as follows: The Kinsellas have repeatedly prevented NB Power and/or Aliant from entering their property. On one occasion, John Kinsella climbed a tree to prevent workers from cutting it. It appears from their affidavits that they may continue to interfere absent directions from the Court. [para. 22] [ 16 ] In deciding to issue the injunction, the application judge relied upon the words of Lord Evershed M.R. in Pride of Derby and Derbyshire Angling Association Ltd. v.

British Celanese Ltd. , [1953] Ch. 149 : […] It is, I think, well settled that if A proves his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered. [p. 181] [para. 23] [ 17 ] In order to provide a proper context for this discussion, it is worthwhile to reproduce the injunction complained of: […] The Respondents, Anna Marie Kinsella and John Kinsella are permanently enjoined and restrained from interfering with these rights and, more particularly: (

i) the Respondents are restrained and enjoined from obstructing, blocking or otherwise impeding the ingress and egress of the Applicants, their employees, contractors or other agents of the Applicants and their employees, over the Property for access to the Applicants’ electrical and communications distribution network; (ii) the Respondents are restrained and enjoined from preventing, impeding, restricting or in any way interfering with the Applicants, or their employees, or with contractors or other agents of the Applicants, or their employees, from constructing, reconstructing, operating and maintaining lines for the distribution of electricity and/or telecommunications on the Property, as the case may be, consisting of such poles, wires, cables, conduits, guys, anchors and other fixtures and appurtenances as the Applicants may require; (iii) the Respondents are restrained and enjoined from preventing, impeding, restricting or in any way interfering with the Applicant, NB Power Distribution, or its employees, or with contractors or other agents of NB Power Distribution, or their employees, from maintaining, inspecting, repairing or removing any works belonging to NB Power Distribution, or from cutting down any trees that might, in the opinion of NB Power Distribution, in falling or in any other manner, endanger the conductors, wires or works belonging to NB Power Distribution. [para. 25] [ 18 ] The appellants contend there was no evidence before the application judge on which she could properly conclude the appellants would continue to deny the respondents entry upon their property, and continue to interfere with or prevent cutting from taking place.

The respondents counter by arguing there was more than enough evidence before the application judge to rule as she did. [ 19 ] In my opinion, there was no error on the part of the application judge in issuing the permanent injunction. The judge had the right to draw reasonable inferences from the evidence before her ( see Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ), and she concluded injunctive relief was required in order to ensure the respondents were free to exercise their rights. This ground of appeal must fail as well. C. Reasonableness Requirement

[20] The appellants contend the application judge should have considered a reasonablenessrequirement as part of s. 84 of the Electricity Act, S.N.B. 2003, c. E-4.6 which reads as follows: Power of Entry 84(1) A distributor or transmitter may enterupon the land or premises of any person and,without the consent of the owner, (

a) maintain, read or remove any metersbelonging to the distributor or transmitter, (

b) maintain, inspect, repair or remove anyworks belonging to the distributor ortransmitter, or (

c) cut down any trees that might, in theopinion of the distributor or transmitter, infalling or in any other manner, endanger theconductors, wires or works belonging to thedistributor or transmitter. Pouvoir d’entrée 84(1) Un distributeur ou un transporteur peutentrer sur le terrain ou sur les lieux ou dansles locaux de toute personne et, sans leconsentement du propriétaire, y faire ce quisuit :

a) entretenir, relever ou enlever lescompteurs qui appartiennent au distributeurou au transporteur;

b) entretenir ou enlever tout ouvrage quiappartient au distributeur ou au transporteur;

c) couper un arbre qui, de l’avis dudistributeur ou du transporteur, pourrait entombant ou autrement mettre en danger lefonctionnement ou l’état d’un conduit, d’uneligne, d’un fil ou d’un ouvrage qui appartientau distributeur ou au transporteur. [21] Contrary to the assertions of the appellants, the application judge did consider reasonableness,as the following excerpt from her decision confirms: In Butler v. N.B Power and Customer Service Corp. (2009) 2009 NBQB 90 , 350 N.B.R. (2d) 1, Justice Léger considered themeaning of s. 84(1).

In that case NB Power had cut numerous trees along the power line next to Butler’s property and some trees onButler’s property. Justice Léger found that Butler was entitled to damages for the trees which were cut “beyond the 11-foot prescribedzone”. He found, on the basis of the law of nuisance, that some of the damage which was done was not “the inevitable result of theauthorized work”. At paragraphs 23 and 25 he stated: [TRANSLATION] 23 I am of the opinion that s. 84(1) must be given a large and liberal

interpretation, as the defendant suggests, in order to take intoaccount the object of the Act. Consequently, in my opinion, the phrase "cut down any trees" as found in s. 84(1) of the Act includes thepruning and polling of trees. Pruning or polling a tree implies some form of cutting, without cutting down the whole tree. As a result, alarger

interpretation affords more flexibility to the defendant in carrying out maintenance work on power lines that is consistent with theobject of the Act. In short, I am of the opinion that s. 84(1) gave the defendant the permission to enter upon the land of the plaintiffswithout their consent in order to cut down any trees that might, in the opinion of the defendant, in falling or in any other manner,endanger the operation of the lines belonging to the defendant.

In other words, the presence of the defendant or its agents does notnecessarily give rise to a right of action since the activity is authorized by the legislature. … 25 In my opinion, contrary to the defendants' (sic) contention, s. 84(2) cannot be interpreted such as to give land owners a right tocompensation because the defendant entered upon their property to carry out maintenance or repair work. In my view, under thesecircumstances, the traditional rule in cases of nuisance must be taken into consideration.

In their notice of claim, the plaintiffsallege that the defendant illegally cut down a large number of trees on their property. There is no doubt that the defendant was entitled tocut down any tree that, in its opinion, needed to be cut down. The wording in the Act clearly sets out a subjective criteria and thisis why the following words are used: "in the opinion of the distributor or transmitter". Accordingly, there is room for discretion on the

part of the defendant in exercising its statutorily authorized right. However, a right authorized by the legislature must nevertheless beexercised in a reasonable manner. The authority granted in s. 84 is much broader than that granted in the Right of Way. Under the latter, the activities of theApplicants is restricted to “remove all trees and brush within a distance of five feet of said lines”.

Under s. 84, the Applicants “may enterupon the land … of any person” and “cut down any trees that might … endanger the conductors, wires or works …” In short, under s.84, the Applicants are not restricted to trees which are on the right of way. The Kinsellas rely on Justice Léger’s reference to [TRANSLATION] “a reasonable manner”, quoted above, to support theircontention that this Court can “control” the exercise of the rights. In Butler, Justice Léger was considering whether NB Power was liableto Butler for cutting numerous trees on his property. NB Power relied on the defence of statutory authority.

Justice Léger applied the testdeveloped in the law of nuisance which is that a defendant who relies on statutory authority to justify its actions must be able todemonstrate that the damage which resulted [TRANSLATION] “was the inevitable result of the authorized work”. In Butler, JusticeLéger found that some of the damage did not meet this test and Butler was awarded damages. The test is a restraint on the defence of statutory authority. It does not give the Court a supervisory role as contended by the Kinsellas. In Board of Police Commissioners et al. v.

Saint John Policeman’s Association et al. reflex, (1987) (NB KB),79 N.B.R. (2d) 430, Justice Stevenson stated that on an application under Rule 16.04, an applicant should either ask the Court to make aspecific declaration of rights under a statute or other instrument or ask the Court specific questions to which it can respond with simpleaffirmative or simple negative answers. In this case, NB Power and Aliant have asked for a specific declaration of rights. [paras. 17-20] [22] In my opinion, the application judge was not rejecting the existence of a reasonablenessrequirement.

It is settled law one must exercise rights in a reasonable manner, or expose oneself to liability. The application judge wasmerely stating, rightly, that it is not the role of the courts to supervise the cutting of trees by a utility which is legally entitled to conductsuch activities. [23] The appellants contend any property owner in a situation similar to theirs is left withoutrecourse, and an action for damages following the cutting of the trees would be of little comfort. I disagree with their contention. Property owners do have another course of action open to them.

If property owners have valid grounds to believe a utility will actunreasonably, and intends to engage in cutting which is excessive or unnecessary, said property owners may come before the courtsseeking an injunction of their own. If successful, the trees in question would be preserved. I find no merit to this ground of appeal, andit too must fail. V. Disposition [24] I would dismiss the appeal, with one set of costs payable by the appellants to the respondents inthe amount of $1,500. __________________________________ BRADLEY V. GREEN, J.A. WE CONCUR:

______________________________ WALLACE S. TURNBULL, J.A. ______________________________ J.T. ROBERTSON, J.A.