Neurenberg v Sikora, 2018 MBCA 9

Citation: Neurenberg v Sikora, 2018 MBCA 9 Date: 20180212 Docket: AI17-30-08929 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN : CAMERON MILES NEURENBERG ) ) R. W. Schwartz (Plaintiff) Appellant ) for the Appellant ) - and - ) ) C. R.

Huband donald sikora ) for the Respondent ) (Defendant) Respondent ) ) Appeal heard and - and - ) Decision pronounced: ) January 26 , 2018 the rural municipality of ) Lac du bonnet, and ) don sikora contracting Ltd. ) Written reasons: ) February 12, 2018 ( Defendants ) ) On appeal from Neurenberg v The Rural Municipality of Lac du Bonnet et al , 2017 MBQB 138 beard JA (for the Court): [ 1 ] The plaintiff has appealed a judgment granting

summary judgment under r 20.01 of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, to the defendant Donald Sikora dismissing the plaintiff’s claim against him. While the judgment dealt with a number of issues, in argument before us, the plaintiff limited his appeal to essentially one issue: namely, whether the motion judge erred in finding that the plaintiff’s claim did not disclose a claim known in law. [ 2 ] Neither the Rural Municipality of Lac du Bonnet (the R.M.) nor Don Sikora Contracting Ltd. (S.C.L.) participated or made representations in the motion for

summary judgment or this appeal. [ 3 ] Following submissions, we dismissed the appeal with brief reasons to follow. These are those reasons. [ 4 ] The motion judge explained the underlying facts as follows (at paras 2-5): . . . [T]he plaintiff owns land within the defendant Rural Municipality of Lac du Bonnet (the “R.M.”) upon which a drain was located. In 2006, the R.M. wrote to the plaintiff asking him to allow it to reroute water in nearby municipal ditches into the drain. The purpose of this effort, it said, was to benefit area farmers as well as residents seeking water and sewer services from the R.M.

It offered to take ownership of the drain and be responsible for its future maintenance and upkeep. Although the plaintiff consented, the project did not proceed. Then, in 2008, the parties entered into the agreement which is the subject of this action. They agreed that the R.M. would take ownership of the drain and an adjacent strip of land, and enlarge it for the rerouted water. The plaintiff says it was a further term of the agreement that the R.M. would install the water and sewer services, and by a certain date. The R.M. denies this, although it

acknowledges that it did want to have the land available for this purpose in the future. According to the plaintiff, Sikora, who was a councillor of the R.M., approached him, saying that he could ensure that the water and sewer services would be constructed. But for this assurance, says the plaintiff, he would never have agreed to allow the work to proceed. For his part, Sikora denies that the conversation occurred or that he ever discussed the matter with the plaintiff. The defendants assert that the agreement was negotiated between the plaintiff and the R.M.’s public works officer.

The R.M. hired [Don] Sikora Contracting Ltd. (“S.C.L.”) to do the excavation work on the drain. Sikora is the principal of S.C.L., and operated the equipment used to enlarge the drain and adjacent municipal ditches. The work was done pursuant to the direction of and specifications provided by the R.M. [ 5 ] It should be noted that, when the council of the R.M. was discussing and voting on awarding the drainage contract to S.C.L., Mr.

Sikora disclosed his interest in S.C.L., withdrew from the meeting and did not participate in the discussion or vote on the resolution to award the contract. (See The Municipal Council Conflict of Interest Act , CCSM c M255 at section 5(1) .) [ 6 ] While Mr.

Sikora denies having discussed the work with the plaintiff, for the purposes of the appeal, it was agreed to proceed on the basis that the conversation, the important parts of which were set out at para 7 of the statement of claim, occurred as alleged. [ 7 ] At the appeal hearing, the plaintiff’s counsel clarified what his claim and this appeal are, and what they are not, about. He said that the claim against Mr. Sikora was neither a claim for negligent misrepresentation nor for misfeasance in public office. As we understand the claim, it is that Mr.

Sikora put himself in a position of a conflict of interest, being both a sitting councillor for the R.M. and on the R.M.’s committee dealing with the plaintiff regarding the drainage project, and also the owner of the company, S.C.L., that contracted with the R.M. to undertake the drainage work. It is alleged that, in those positions, he made the statements to the plaintiff set out in para 7 of the statement of claim assuring him that the water and sewer project would go ahead, which statements induced the plaintiff to agree to the drainage work.

But for those assurances, the plaintiff says, he would not have agreed to let the work proceed. [ 8 ] The plaintiff argues that he is advancing a new cause of action raising a new duty of care, being that Mr. Sikora breached his duty to the plaintiff, personally, by inducing him to enter into the agreement with the R.M. to complete the drainage work, and that it was reasonable for him to rely on those inducements due to Mr.

Sikora’s position as a councillor for the R.M. and as owner of S.C.L. [ 9 ] We are of the view that this alleged new duty of care and cause of action have not been pled and, further, that they cannot be inferred from the pleadings, as they now appear. [ 10 ] As a result, the appeal was dismissed and the judgment dismissing the claim against Mr. Sikora was upheld. [ 11 ] Mr. Sikora will have costs on the appeal under the Tariff. JA JA JA