Corn delivery case turns on witness credibility

The Plaintiff company in this case from New Brunswick claimed that it had delivered 8 loads of wet corn to the Defendant company at harvest and that the Defendant company failed to pay for the corn.  The Plaintiff valued the claim at over $33,000.  The Defendant company denied that there was a contract calling for payment to the Plaintiff company at all.  Instead, the Defendant said that it had agreed to purchase the corn from an entirely different third party; the price to be paid for the corn was to be credited to the outstanding account the third party had with the Defendant company.

The judge at trial commented: "There are two starkly different versions of the facts of this case.  Ultimately, the disposition of this case will turn on findings of credibility."  The judge determined that neither the representative of the Plaintiff company nor the third party (an uncle and his nephew) were credible witnesses and found as follows:

Based on my findings of fact, it is clear that there never was a contract between the plaintiff and the defendant for the sale of corn. The arrangement was that the third party, KT, would deliver bulk wet corn to the plaintiff’s premises in Centreville to be picked up by the defendant, the value of which would be applied by the defendant to the third party’s outstanding account. There being no contract of purchase and sale between the plaintiff and the defendant, the plaintiff’s action is dismissed. Given that there is no liability on the defendant, the defendant’s third party claim is dismissed.

Read the decision at: Taylor’s Feed & Tires Ltd v Brennan Farms Ltd.

NB Court tells landowners to allow access to power line right-of-way

NB Power and Bell Aliant brought an application before the New Brunswick Court of Queen's Bench asking the Court to interpret a Right of Way Agreement after a family in Fredricton denied access to their property for utility work.  Beginning in May 2011, various employees of the two utility companies attempted to access a right of way on the property.  The utilities said they have a right to enter the property, and to remove trees and brush within a distance of five feet of their lines.  They said they have these rights under the Agreement and under s.84 of the Electricity Act.

In response to the application, the Fredricton family suggested that a trial was necessary to determine the issues, saying that there were "materials issues in dispute".  However, the Court disagreed.  It found that the language of the Right of Way Agreement is unambiguous and grants the rights of access being denied by the property owner and her son.  Also, the Court found that the rights in the Electricity Act are even broader.

The Court concluded that it could decide the case as an application and ruled in favour of the utilities.  It granted an injunction restraining the respondents from preventing access to their property.

Read the decision at: NB Power et al. v. Kinsella.

Defective seed potato ruling upheld by NB Court of Appeal

Atlantic Potato Distributors Ltd., a potato distributor located in New Brunswick, brought an action against Robert Meersseman and Leon Meersseman, farmers in Ontario, seeking payment for seed potatoes. The Meerssemans admitted receiving and planting the seed potatoes, but asserted that some of the seed potatoes were defective, and counterclaimed to recover the resulting losses.  A crop adjuster for Agricorp (Ontario's crop insurance program) inspected the Meerssemans' fields and reported that between 50 and 60 percent of the crop did not emerge.  Following an unsatisfactory harvest, the Meerssemans refused to pay Atlantic for the seed. 

Both parties were successful at trial (i.e. the Meerssemans owed Atlantic for the seed potatoes they had purchased, but Atlantic was liable to the Meerssemans for the losses they suffered as a result of planting those defective seed potatoes).  Atlantic appealed the finding of liability for breach of a warranty implied under s. 15 of the Sale of Goods Act, R.S.N.B. 1973, c. S-1, as well as the damages award to the Meerssemans.  The New Brunswick Court of Appeal dismissed the appeal on both grounds.

Read the decision at: Atlantic Potato Distributors Ltd. v. Meersseman.

N.B. Court quashes Minister's attempt to require that all chickens produced in province be processed in province

Nadeau Poultry Farm Limited ("Nadeau") owns and operates the only federally licensed chicken processing plant in New Brunswick.  Westco is a consortium that produces live chickens for processing and owns approximately 51% of New Brunswick's chicken production quota.  Westco holds a federal licence to market chicken interprovincially and in 2007 entered into a partnership with a Quebec company to build a new processing plant in New Brunswick (having failed to secure the purchase of the Nadeau plant).  In 2008, Westco notified Nadeau that it would no longer be supplying chickens to Nadeau's plant. 

Nadeau, facing the loss of its entire supply of chickens for processing, launched several administrative and court processes aimed at blocking the Westco plan.  An appeal to the Federal Competition Bureau failed, but an appeal of that decision is still pending before the Federal Court of Appeal.  Court challenges in New Brunswick also failed.

That was when the Minister of Agriculture and Aquaculture in New Brunswick stepped in.  On June 3, 2008, the Minister introduced Bill 81, An Act to Amend the Natural Products Act, (“Amendment”). The object of Bill 81 was to add a provision to the NPA which would authorize the Minister to designate the plants where chicken may be processed in New Brunswick.  On January 19, 2010, the Minister issued a Ministerial Order which decreed as follows:

SUBJECT: Ministerial Order to Designate Chicken Processing Plant

Pursuant to subsection 41.1(2) of the Natural Products Act, chapter N-1.2 of the Acts of New Brunswick, 1999, the following plant is designated as the federal inspected abattoir where chicken grown in New Brunswick shall be processed : 

Nadeau Poultry Farm Limited
222 Commercial Street
Saint-François-de-Madawaska,
New Brunswick E7A 1B6

This Order is effective January 31, 2010.

The Ministerial Order designated a single plant as the federal inspected abattoir for the processing of chicken grown in New Brunswick. The legal effect of the Ministerial Order was to require producers of chicken in New Brunswick to process their entire product at that plant only. Unless it was the intention of a producer to stop processing chicken, the result of the Ministerial Order was that the only option presently available for processing of chicken grown in New Brunswick would be the single plant designated by the Minister. The practical effect of the Ministerial Order was to restrict the ability of chicken producers in New Brunswick to sell their live chickens to processors outside of the Province. In the present case the intent was to prevent Westco from exporting their chicken to Olymel’s processing plant in the Province of Quebec.

In both purpose and effect, the Ministerial Order was directed towards interprovincial trade. The legal effect to producers of chicken in the Province was a prohibition to export their chicken outside the Province of New Brunswick. The Ministerial Order, therefore, was not within the authority granted to the Minister by the Amendment.  On this basis, the Court of Queen's Bench in New Brunswick quashed the order.

Read the decision at: Westco v. New Brunswick.